Cunningham v. Verizon Wireless

Filing 58

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons discussed herein, Plaintiff's objections 55 are overruled, and the Court adopts the Magistrate Judge's R&R (Doc. No. 51 ). Accordingly, Defendant's Summary Judgment Motion (Doc. No. 51 ) is GRANTED. The Clerk of the Court is DIRECTED to enter final judgment under Federal Rule of Civil Procedure 58 and close the file. Signed by District Judge Eli J. Richardson on 3/26/2024. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
NECOLE CUNNINGHAM,
Plaintiff,
v.
VERIZON WIRELESS,
Defendant.

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NO. 3:20-cv-00866
JUDGE RICHARDSON

ORDER
Pending before the Court is a Report and Recommendation (“R&R”) of the Magistrate
Judge (Doc. No. 51), wherein the Magistrate Judge recommends that this Court grant the
Defendant’s Motion for Summary Judgment (Doc. No. 34, “Summary Judgment Motion”) on all
claims and dismiss this action. (Doc. No. 51). Plaintiff filed objections to the R&R (Doc. No. 55,
“Objections”), and Defendant responded (Doc. No. 56).1 For the reasons stated herein, the Court2
adopts the findings of the Magistrate Judge in the R&R and grants the Summary Judgment Motion.
BACKGROUND
Plaintiff does not dispute any of the facts as laid out by the Magistrate Judge in the R&R.
As such, the Court adopts that factual background in its entirety and include them here for
reference.
Necole Cunningham (“Plaintiff”) is a resident of Murfreesboro, Tennessee.
She began working for Cellco Partnership d/b/a/ Verizon Wireless (“Defendant”)
1

Plaintiff also replied to Defendant’s response at Doc. No. 57. However, LR 72.02 does not give leave for
a reply, and Plaintiff did not make any request upon the Court for leave to reply. Accordingly, Plaintiff’s
reply at Doc. No. 57 will be disregarded.

2

Herein, the term “Court” usually refers to the undersigned district judge, as distinguished from the
magistrate judge who issued the R&R.

in October 1999 and worked as a full-time Customer Service Representative
(“CSR”) at the Murfreesboro Call Center between 2016 and November 2018. CSRs
receive calls from Verizon Wireless customers and then evaluate and resolve
customer concerns over billing, account management, or troubleshooting. In this
position, Plaintiff received benefits, including healthcare coverage, as well as shortterm and long-term disability benefits (respectively, “STD” and “LTD”). Part-time
CSRs were also employed at the Call Center, performing the same work duties but
with a lesser benefit package, including a lesser, employer-paid premium amount
for health care coverage.
In 2017, Plaintiff requested a leave of absence for a medical issue involving
her neck. Defendant approved the leave beginning in June 2017. After several
months of leave, Defendant contacted Plaintiff in March 2018 to discuss her return
to work. On March 20, 2018, Plaintiff requested more leave from work after she
and her physician identified a need for several weeks of additional leave before she
could return to work. Defendant accommodated this request, and Plaintiff remained
on leave until May 29, 2018. During this time, Plaintiff exhausted all twelve weeks
of protected leave under the Family and Medical Leave Act and applied for and
received both STD and LTD benefits. Defendant held Plaintiff’s position open for
her throughout the nearly yearlong leave of absence.
On May 29, 2018, Plaintiff requested accommodations in order to return to
work. In her request, Plaintiff represented that she could “work no more than 4–6
hours per day and will need a break every 1–2 hours” and estimated that she would
need six months of a reduced work schedule. Defendant agreed to temporarily allow
Plaintiff to work reduced hours and to “ramp up” to working full-time hours.
Defendant also allowed Plaintiff to use a special chair, computer mouse, arm rest,
and sit-stand workstation. Defendant continued to classify Plaintiff as a Full-Time
CSR even though she was only working part-time hours. Defendant did not promise
or tell Plaintiff that her reduced work schedule would last longer than six months.
In August 2018, Plaintiff, despite her continued inability to work full-time,
requested a transfer to a full-time Home-Based CSR position so that she “could be
in the comfort of [her] own home” and “take necessary breaks or lay down as
needed.” This position allowed for a split-shift work schedule separated by an
extended break. Defendant denied the request, asserting that (1) Plaintiff was still
not cleared to work full-time and (2) there were not openings for this position at the
time of Plaintiff’s request. Plaintiff admits that the only accommodation request
that Defendant ever denied was this request. Despite denying this request,
Defendant permitted Plaintiff to split her part-time hours into a split-shift work
schedule, whereby she worked for 2.5 hours, returned to her home for 3 hours, and
returned to work for three hours.
In October 2018, Plaintiff’s doctor would not clear her to work full-time
and could not provide an anticipated time frame for her to return to full-time work
even though that was her goal. On October 18, 2018, Plaintiff met with Marloresa
Ferguson (“Ferguson”) from Defendant’s human resources department (“HR”) to

discuss her status. Defendant proposed two options to Plaintiff in light of her
inability to return to full-time work: (1) Defendant would change her job status to
parttime, to reflect the hours she actually worked, and would receive lesser work
benefits, including the loss of employer based health care premiums, or (2) Plaintiff
would continue to receive LTD benefits based upon her full-time pay rate and
benefits but would separate from employment with the option to later reapply for
employment. Plaintiff was given two weeks to consider the options.
On November 2, 2018, another meeting between Plaintiff and Ferguson
occurred and Plaintiff ultimately chose the LTD option. She was separated from
employment that day. On November 5, 2018, Plaintiff e-mailed Ferguson about the
matter, requesting to withdraw her decision to take the LTD option. The following
day, Ferguson tried unsuccessfully to reach Plaintiff by phone but could not leave
a message because Plaintiff’s voice mailbox was full. She also sent Plaintiff a
response email that day asking her to call HR. There is no evidence that Plaintiff
responded to HR’s e-mail or otherwise communicated with HR about the matter.
Over the next two years, Plaintiff sought various disability-related benefits
by representing her ongoing inability to work. Plaintiff applied for and received
Social Security Disability Insurance (“SSDI”) benefits. The ALJ found that
Plaintiff was “unable to perform her past relevant work” as a customer service
representative. Plaintiff was found to qualify for SSDI benefits with an onset date
of October 31, 2018. Plaintiff claimed she could not work in her role at Defendant,
nor in other positions, throughout the benefits proceeding.
(Doc. No. 51 at 1–4) (footnotes and citations omitted).
LEGAL STANDARD
When a magistrate judge issues a report and recommendation regarding a dispositive
pretrial matter, the district court must review de novo any portion of the report and
recommendation to which a proper objection is made. Fed. R. Civ. P. 72(b)(3). The district judge
may accept, reject, or modify the recommended disposition, review further evidence, or return the
matter to the magistrate judge with instructions. Id. Fed. R. Civ. P. 72(b)(2) provides that a party
may file “specific written objections” to a report and recommendation, and Local Rule 72.02(a)
provides that such objections must be written and must state with particularity the specific portions
of the Magistrate Judge’s report or proposed findings or recommendations to which an objection
is made.

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(3), the Court has reviewed
de novo the Report and Recommendation, the Objections, and the file. For the reasons set forth
below, the Objections of the Plaintiff are overruled, and the Report and Recommendation is
adopted and approved.
ANALYSIS
The R&R recommends that the Court grant Defendant’s motion for summary judgment
and dismiss the action filed by Plaintiff. (Doc. No. 51 at 1). Plaintiff objected to the findings of
law of the Magistrate Judge from the R&R only insofar as they dismissed the failure-toaccommodate claim. (Doc. No. 55-1 at 2). Since Plaintiff did not timely object to her other claims
of disparate treatment or retaliation, the Court begins by adopting the recommendation of the
Magistrate Judge and granting summary judgment as to those two claims. See Frias v. Frias, No.
2:18-CV-00076, 2019 WL 549506, at *2 (M.D. Tenn. Feb. 12, 2019); Murr v. United States, 200
F.3d 895, 902 n.1 (6th Cir. 2000).
Plaintiff’s Objections focus on the R&R’s conclusion “that Verizon [i.e., Defendant]
offered a part-time position, and this was a ‘reasonable accommodation in light of the facts of this
case.’” (Doc. No. 55-1 at 1 (quoting Doc. No. 51at 12)). Plaintiff argues that the Magistrate Judge
did not have a “clear understanding of this part-time offer” and ignored the “evidence that Verizon
urged Ms. Cunningham not to accept this position.” (Id. at 2). Plaintiff’s primary support for these
contentions was her own deposition testimony in which she alleged that Verizon had pointed out
to her that her medical bills and/or the premium on her health insurance in the part-time position

would cost more than she would make in the part-time position,3 as well as the fact that Verizon
has allegedly failed to “provide[] any information” as to how this deficit was calculated.4
Absent compelling reasons, parties are not allowed to raise new arguments or issues to the
district judge that were not presented to the magistrate judge. Murr v. United States, 200 F.3d 895,
902 n.1 (6th Cir. 2000). Although Plaintiff previously contended (in her memorandum in
opposition to Defendant’s Summary Judgment Motion) that Verizon’s accommodation was not
reasonable, the reasons for this contention asserted at that time are different from the reasons she
now makes (in her Objections) in support of the same contention. (Doc. No. 41). For example,
Plaintiff previously contended that the choice Defendant offered Plaintiff was misleading because
it was not clear to Plaintiff that one option involved termination while the other would be parttime and “have no benefits” (Doc. No. 41 at 2) and that Defendant should have offered additional
leave or a modified work schedule (id. at 9, 15-16). In other words, the reasons she is now asserting
for her contention of unreasonableness are entirely new, and for that reason the Court therefore is
not required to consider them.

3

The “and/or” herein is reflective of a lack of clarity in Plaintiff’s argument as to what Defendant allegedly
said and is not meant to reflect that Defendant itself said “and/or” in this alleged discussion with Plaintiff.
This lack of clarity comes both from the deposition testimony where she started to say that Defendant
attributed the deficit to her medical bills before stopping and then saying that Defendant attributed the
deficit to the higher insurance premiums, (see Doc. No. 56 at 11 (quoting Pl. Dep. 88:16-89:3)), and from
her Objections where she says both, (Compare Doc. No. 55-1 at 3 (“she would be in a ‘deficit’ due to her
medical bills”) with id. at 3-4 (discussing how Verizon allegedly represented that the part-time
employment’s higher premiums would land Plaintiff in a financial deficit). If the Court needed to consider
the Objections on the merits (which it does not, as described herein), this uncertainty is detrimental to
Plaintiff’s claim, as even assuming in arguendo Defendant was required to have a health insurance premium
that cost less than Plaintiff’s pay, Defendant surely cannot be responsible for a deficit caused by Plaintiff’s
independent financial obligations.
4

It is entirely unclear what calculations Plaintiff believes Defendant should have presented, and the
contemplated calculations seem potentially to include anything from the way in which higher premiums are
set for part-time employees to Plaintiff’s specific plan benefits.

Nonetheless, the Court has reviewed the Report and Recommendation and the file, and
even if the Court considered these new arguments, the Court would not have found them sufficient
to prevent a grant of summary judgment for the reasons articulated by the magistrate judge when
recommending such a grant. The Report and Recommendation is adopted and approved.
CONCLUSION
For the reasons discussed herein, Plaintiff’s objections are overruled, and the Court adopts
the Magistrate Judge’s R&R (Doc. No. 51). Accordingly, Defendant’s Summary Judgment Motion
(Doc. No. 51) is GRANTED.
The Clerk of the Court is DIRECTED to enter final judgment under Federal Rule of Civil
Procedure 58 and close the file.
IT IS SO ORDERED.
___________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE