Simpson v. Convergys Customer Management Group, Inc.

Filing 26

ORDER on 17 Motion for Summary Judgment. The motion is GRANTED in part and plaintiffs Title VII and FMLA claims are DISMISSED with prejudice; DENIED in part and plaintiffs ADA and state wrongful discharge claims are allowed to move forward to trial. Signed by District Judge Max O. Cogburn, Jr on 11/17/2015. (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00603-MOC-DCK
PEGGY L. SIMPSON,
Plaintiff,
Vs.
CONVERGYS CUSTOMER MANAGEMENT
GROUP, INC.,
Defendant.

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ORDER

THIS MATTER is before the court on defendant’s Motion for Summary Judgment,
plaintiff’s Response, and defendant’s Reply.

On November 9, 2015, the court heard oral

arguments.
On a motion for summary judgment, the moving party has the burden of production to
show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the
non-moving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must
do more than simply show that there is some metaphysical doubt as to the material
facts. In the language of the Rule, the nonmoving [sic] party must come forward
with "specific facts showing that there is a genuine issue for trial." Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial."
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations
omitted; emphasis in the original) (quoting Fed. R. Civ. P. 56). There must be more than just a
factual dispute; the fact in question must be material and readily identifiable by the substantive
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

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By reviewing substantive law, the court may determine what matters constitute material
facts. Anderson, supra. "Only disputes over facts that might affect the outcome of the suit under
governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about
a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a
verdict for the nonmoving party." Id. The court must credit factual disputes in favor of the party
resisting summary judgment and draw inferences favorable to that party if the inferences are
reasonable, however improbable they may seem. Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir.
1980). Affidavits filed in support of a Motion for Summary Judgment are to be used to determine
whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v.
Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a
determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458
(4th Cir. 1979).
In determining whether a genuine issue of material fact exists, the admissible evidence of
the non-moving party must be believed and all justifiable inferences must be drawn in his or her
favor. Anderson, supra, at 255. In the end, the question posed by a summary judgment motion is
whether the evidence "is so one-sided that one party must prevail as a matter of law." Id., at 252.
The court finds that, as to certain disability related claims, it is not.
Defendant contends that plaintiff was terminated from her employment after scoring a
number of points based on being tardy to work and based on failure to show up for work without
first calling. While not contesting the accuracy of defendant’s time keeping, plaintiff contends
that her time and attendance issues were caused by defendant’s failure to provide her with a
reasonable accommodation for deafness and that she was wrongfully terminated. Specifically, she

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contends that defendant: (1) discriminated against her in violation of the Americans with
Disabilities Act, as amended (“ADA”) and under North Carolina’s wrongful discharge law; (2)
retaliated against her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); and (3)
interfered and retaliated against her in violation of the Family and Medical Leave Act (“FMLA”).
Complaint (#1) at ¶¶ 52, 58, 68, 71). The court agrees with defendant that plaintiff has not pled,
much less come forward, with any facts that would support any Title VII action or any action under
the FMLA, and will grant summary judgment as to those claims for the reasons argued by
defendant in its supporting and reply memoranda.
As to plaintiff’s disability based claims, defendant leans heavily on plaintiff’s deposition
testimony that she believed her employment was terminated because of her attendance record, Pl.
Dep. 148:25 – 149:14), and that when asked whether she believed her termination was based on
her disability, she stated “I don’t know what the reason she wanted to get rid of me.” Id. at 152:10
– 152:13. Such answers in and of themselves do not make resolution of plaintiff’s disability claims
so “one-sided that one party must prevail as a matter of law." Anderson, supra, at 252. What
plaintiff appears to be claiming in her verified Complaint is while she was terminated for time an
attendance issues, those issues were directly linked to defendant’s failure to provide her a
reasonable accommodation, to wit, an amplified, side specific phone headset for her hearing loss.
Indeed, plaintiff has presented evidence that when she complained of hearing loss in an earlier
charge to the EEOC, defendant responded and provided the needed amplified, side-specific
headset. That device, however, broke and/or was taken away in part by other employees and never
repaired and replaced in plaintiff’s last six months of employment. Further, plaintiff’s evidence
when viewed in a light most favorable to her shows temporal proximity between the failure of

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defendant to continue to provide plaintiff with the accommodation and her attendance issues.
While defendant argues that plaintiff had no substantive performance issues despite the lack of the
device in her last six months – thereby showing she was able to do the work without such
accommodation – the court believes such conclusion by defendant is not an endpoint. Even if the
court were to accept as true that plaintiff’s substantive performance was not diminished when the
device was not available, such post-hac reasoning fails to take into consideration that a hearing
disabled person would be motivated to find and use a hearing enabling device to aid them in
accomplishing their work without the discomfort of straining to hear a caller.
Defendant also puts great stock in the fact that plaintiff was not required to first find her
device before clocking in and argues that she could have simply gone to the nearest computer and
logged into the system and been on time. In the Order setting oral arguments, the court specifically
asked counsel to be prepared to discuss whether an employee would be able, after clocking in on
one computer, to go to another computer with a compliant device and work without being. The
defendant’s answer was not entirely clear and at best it appeared that plaintiff could go to a second
computer, but would have to remain logged in on the first computer causing a great deal of
confusion for management. Finally, plaintiff has presented some evidence that her troubles also
coincided with the arrival of a new manager/team leader, Zena Henry, who knew that the amplifier
was non-operative while she was plaintiff’s team leader, but did not secure a replacement amplifier
before terminating plaintiff’s employment with approval from Human Resources.
A federal cause of action for discrimination in employment based upon disability requires
allegations and ultimately proof that plaintiff: (1) is an individual with a disability (or perceived
as such a person); (2) is otherwise qualified to perform job requirements, with or without

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reasonable accommodation; and (3) was discharged solely by reason of a disability. Doe v.
University of Maryland Medical Sys. Corp., 50 F.3d 1261, 1265 (4th Cir.1995); 42 U.S.C. §
12112(a).

While defendant argues that plaintiff’s admission in her response that she was

discharged based on time and attendance issues is wholly dispositive under Doe, the proffered
facts underlying this particular claim do not lead the court to the same conclusion. Considered in
alight most favorable to the party resisting summary judgment, a reasonable inference arises that
while time and attendance was the reason for termination, plaintiff’s time and attendance issues
were in turn caused by defendant’s failure to provide or continue to provide plaintiff with a
reasonable accommodation. Unlike most disability cases where the failure to provide a reasonable
accommodation interferes with or makes the substantive work more difficult, plaintiff contends
that the difficulty encountered in securing the accommodation also interfered with her procedural
ability to clock in for work in a timely manner. Read most liberally, plaintiff has proffered
sufficient evidence from which a reasonable inference could be drawn that she was discharged
based solely on her disability.

ORDER
IT IS, THEREFORE, ORDERED that defendant’s Motion for Summary Judgment (#17)
is:
(1)

GRANTED in part and plaintiff’s Title VII and FMLA claims are DISMISSED

with prejudice;
(2)

DENIED in part and plaintiff’s ADA and state wrongful discharge claims are

allowed to move forward to trial. Such denial is, however, without prejudice to renewal of the

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motion for summary judgment in the form of a motion for judgment as a matter of law under Rule
50(a) at the close of plaintiff’s evidence.

Signed: November 17, 2015

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