Asher v. United Recovery Sytems
Filing
20
MEMORANDUM OPINION AND ORDER granting 16 MOTION for Summary Judgment . (Signed by Judge Sim Lake) Parties notified. (cfelchak, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VINCENT LEIGH ASHER,
November 23, 2015
David J. Bradley, Clerk
§
§
Plaintiff,
v.
UNITED RECOVERY SYSTEMS, L.P.,
Defendant.
§
§
§
§
§
§
§
CIVIL ACTION NO. H-14-0661
MEMORANDUM OPINION AND ORDER
Plaintiff,
Vincent Leigh Asher,
brings this action against
defendant, United Recovery Systems, L.P.
("URS"), for violation of
the Americans with Disabilities Act, as amended, 42 U.S.C.
et seg.
§
12111,
("ADA"), and the Family and Medical Leave Act ("FMLA"), 29
U.S.C. § 2601, et seg., and for intentional infliction of emotional
distress in violation of Texas common law.
court
are
Defendant's
("Defendant's MSJ")
Motion
for
Complete
Pending before the
Summary
Judgment
(Docket Entry No. 16) and Plaintiff's Response
to Defendant's Motion for Complete Summary Judgment ("Plaintiff's
Response")
(Docket Entry No. 19).
For the reasons set forth below,
URS's motion for summary judgment will be granted and this action
will be dismissed.
I.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact,
and the law
Fed. R. Civ. P. 56(c).
entitles it to judgment.
material
facts
are
"genuine"
if
the
evidence
Disputes about
is
such
that
a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
The
Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment "after adequate time for
discovery and upon motion,
showing
sufficient
to
against a party who fails to make a
establish
the
existence
of
an
element
essential to that party's case, and on which that party will bear
Celotex Corp.
the burden of proof at trial."
v.
Catrett,
106
S. Ct. 2548, 2552 (1986).
A party moving for
summary judgment "must
absence of a genuine issue of material fact,'
the elements of the nonmovant's case."
37 F. 3d 1069, 1075 (5th Cir. 1994)
'demonstrate the
but need not negate
Little v. Liquid Air Corp.,
(en bane),
(quoting Celotex, 106
S. Ct. at 2553-2554 (emphasis in original)).
"If the moving party
fails
to meet
this
initial
burden,
the motion must
regardless of the nonmovant's response."
If,
be
denied,
however,
the
moving party meets this burden, Rule 56(c) requires the nonmovant to
go beyond the pleadings and show by affidavits, depositions, answers
to interrogatories, admissions on file, or other admissible evidence
that specific facts exist over which there is a genuine issue for
trial.
Id.
(citing Celotex, 106 S. Ct. at 2553-2554).
In reviewing
the evidence "the court must draw all reasonable inferences in favor
of
the
nonmoving
party,
and
it
-2-
may
not
make
credibility
determinations or weigh the evidence."
Reeves v. Sanderson Plumbing
Products, Inc., 120 S. Ct. 2097, 2110 (2000).
Factual controversies
are to be resolved in favor of the nonmovant, "but only when there
is an actual controversy, that is, when both parties have submitted
evidence of contradictory facts."
Little, 37 F.3d at 1075.
nonmoving party's
affected by the
burden
is
not
type
"[T]he
of case;
summary judgment is appropriate in any case 'where critical evidence
is so weak or tenuous on an essential fact that it could not support
a judgment in favor of the nonmovant.'"
Id.
(quoting Armstrong v.
City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993)).
II.
Undisputed Facts
URS is a collection agency with offices in Texas, Oklahoma,
Arizona,
and
Kentucky
that
employs
collectors
who
telephone
consumers in an effort to recover debts owed to URS's clients. 1
URS and its collectors are required to abide by federal and state
regulations
governing
communications
the Fair Credit Reporting Act
~'
with
consumers
("FCRA"),
including,
15 U.S.C.
§
1681
et seg., and the Fair Debt Collection Practices Act ("FDCPA"), 15
U.S.C.
§
1692, et seg.
URS and its collectors must also abide by
internal collection standards and the requirements of its clients,
which include banks and credit card companies. 2
1
Declaration of Jacqueline Dee Berry ("Berry Declaration"),
Exhibit A to Defendant's MSJ, Docket Entry No. 16-1, ~~ 2-3.
2
Declaration of Keith Wayne Donovan ("Donovan Declaration"),
Exhibit C to Defendant's MSJ, Docket Entry No. 16-3. ~~ 6-8.
-3-
I
I
I
l
URS hired Asher in August of 2008 to work as a collector at
its office in Tulsa, Oklahoma. 3
Asher's job duties required her to
telephone debtors in an effort to collect delinquent accounts. 4
Even though Asher had twenty years of experience in collections
prior to working for URS,
5
URS trained Asher on proper collection
procedures including regulations and client-specific requirements
for
the accounts
she was
assigned to work.
6
Asher's
training
included the need to adhere to the following procedures during a
collection call:
pull up the account and initiate the call; once
answered, give the Quality Assurance Statement; identify herself as
a caller for URS; verify the consumer's identity; give the MiniMiranda Statement; and state the purpose of the call.
The Quality
Assurance Statement informs the consumer that the call will be
monitored or recorded; this statement is required in states that
prohibit the recording or monitoring of calls without both parties'
consent.
Verification prevents disclosure to a random person that
a consumer owes a debt and is required by the FDCPA and many state
debt collection laws.
The Mini-Miranda Statement is required by
3
Plaintiff's Affidavit Concerning Her Testimony in Response to
Defendant's Motion for Summary Judgment ("Plaintiff's Affidavit"),
Exhibit M to Plaintiff's Response, Docket Entry No. 19-1, ~ 6.
4
Donovan Declaration, Docket Entry No. 16-3,
~
5.
5
Deposition Excerpts from Vincent Leigh Asher Deposition
March 23, 2015 ("Plaintiff's Deposition"), Exhibit D to Defendant's
MSJ, Docket Entry No. 16-4, p. 26:11-15.
6
Donovan Declaration, Docket Entry No. 16-3, ~ 9.
-4-
the
FDCPA
to
collector,
inform
consumers
that
the
call
is an attempt to collect a debt,
obtained will be used for that purpose. 7
gather
from
on
the
consumer's
debt
URS collectors are also
create a sense of
discuss the reasons for the balance,
information
a
and that information
expected to demand the balance of the account,
urgency to pay,
is
financial
negotiate,
circumstances,
discuss settlement, accept payment if payment is agreed upon, and
provide a summary of the call. 8
To keep calls flowing towards a
positive outcome, URS maintains scripts for collectors to follow.
In
August
Houston, Texas,
account,
11
of
10
2012
Asher
transferred
to
URS's
office
9
in
where she was assigned to work on the Chase Bank
which was overseen by URS' s Vice-President of Operations,
Jacqueline Dee Berry ("Berry") . 12
Plaintiff's immediate supervisor
was Frank McArthur ("McArthur"), who reported to Division Manager,
Keith Wayne Donovan
7
Id.
CJI
("Donovan") . 13
Plaintiff normally worked 8-9
10.
9
Id. CJICJI 12-13; Plaintiff's Deposition, Docket Entry No. 16-4,
pp. 95:7-96:15.
10
Plaintiff's Deposition, Docket Entry No. 16-4, p. 56:16-19;
Plaintiff's Affidavit, Docket Entry No. 19-1, CJI 9.
nDonovan Declaration, Docket Entry No. 16-3,
CJI
15.
12
Berry Declaration, Docket Entry No. 16-1, CJICJI 2 and 8.
See
also Plaintiff's Deposition, Docket Entry No. 16-4, pp. 12 3: 2 5124:3.
13
Donovan Declaration, Docket Entry No. 16-3,
-5-
CJI
3.
hours
a
day,
but
was
neither
prohibited
nor
discouraged
from
working more hours. 14
In
October
2012
plaintiff
was
involved
in
an
automobile
accident following which she applied for and received FMLA leave. 15
Plaintiff's application for FMLA leave was processed by URS's Human
Resources Specialist, Gloria Jean Amos ("Amos") . 16
On January 7, 2013, Asher received her first Employee Warning
Notice for having failed to provide a Quality Assurance Statement
to a debtor. 17
On March 8,
being off-script. 18
2013,
On March 11,
Asher received counseling for
2013,
Asher
received another
counseling for failing to properly verify the debtor and failing to
give a Mini-Miranda statement. 19
14
Id.
~
Asher also received an "in-house
5.
15
Declaration of Gloria Jean Amos
("Amos Declaration"),
Exhibit B to Defendant's MSJ, Docket Entry No. 16-2, ~ 8. See also
Exhibit 1 to Amos Declaration, Docket Entry No. 16-2, pp. 46-47,
URS/Asher 00163-64 (October 26, 2012, letter from Gloria J. Amos to
plaintiff stating, inter alia, "[d]ue to your own personal illness
we are provisionally placing you on Family and Medical Leave
effective October 22, 2012"; and Notice of Eligibility and Rights
& Responsibilities dated 10/26/2012).
Id. ~~ 2 and 7-8.
See also Plaintiff's Deposition,
Entry No. 16-4, p. 126:19-23.
16
Docket
17
Employee Warning Notice, Exhibit 1 to Amos Declaration, Docket
Entry No. 16-2, p. 42, URS/Asher 00123); Donovan Declaration, Docket
Entry No. 16-3, ~ 18; Plaintiff's Deposition, Docket Entry No. 16-4,
p. 92:8-13.
18
Donovan Declaration, Docket Entry No. 16-3, ~ 18. See also
Exhibit 1 to Amos Declaration, Docket Entry No. 16-2, p. 40,
URS/Asher 00121 (URS Compliance Issues Identification & Follow Up) .
19
Id.
See also Exhibit 1 to Amos Declaration, Docket Entry
No. 16-2, pp. 36-39, URS/Asher 00116-00119 (Coaching Form).
-6-
suspension"
that
required
her
to
attend
training course on collection compliance. 20
an
all-day
refresher
On April 2, 2013, Asher
failed to give Quality Assurance and Mini-Miranda statements, and
as a result she was suspended from work from April 4, 2013, through
April 9, 2013. 21
When Asher returned to work on April 10, 2013, she
received a Final Written Warning, which stated:
"Future violations
of the FDCPA will result in termination." 22
In
April
of
2013
Asher's
son
bought
a
house,
and
Asher
aggravated her back bending over boxes packing and unpacking. 23
April 21-22,
back pain.
On
2013, Asher missed work for two days because of her
On April 24, 2013, McArthur sent plaintiff an e-mail
asking her to make up the 16 hours of work time that she missed on
April
21-22,
2013,
by
the
end
of
the
pay
period.
Plaintiff
responded that
[i]f I make up 16 hours by the end of this pay period, it
would require me to work 4 hours Saturday, which I don't
mind, 4 hours overtime tomorrow, which I know that I am
physically incapable of, and working 12 hours, as well,
on Monday and Tuesday.
Instead, I am requesting FMLA
20
Id.
See also Exhibit 1 to Amos Declaration, Docket Entry
No. 16-2, pp. 35-39, URS/Asher 00115-00119 (record of in-house
suspension training and coaching form); and Plaintiff's Deposition,
Docket Entry No. 16-4, pp. 105:11-108:3.
21
Id. See also Plaintiff's Deposition, Docket Entry No. 16-4,
pp. 102:15-103:1.
22
Id. See also Berry Declaration, Docket Entry No. 16-1, ~ 9,
Exhibit 1 to Amos Declaration, Docket Entry No. 16-2, p. 34,
URS/Asher
00114
(Employee Warning Notice);
and
Plaintiff's
Deposition, Docket Entry No. 16-4, pp. 101:24-102:12.
23
Plaintiff's Affidavit, Docket Entry No. 19-1, p. 7 ~ 20.
-7-
paperwork, which I
agree to. 24
am certain my new specialist will
On that day Asher requested FMLA paperwork from Amos. 25
Asher left
work early that day and the next day, April 25, 2013. 26
On April 25, 2013, Asher visited PrimeCare Medical Group, and
obtained a doctor's note stating that she would be able to return
to work on April 26, 2013, without any restrictions. 27
But Asher
did not return to work until April 29, 2013, when she presented DRS
a doctor's note from the Richmond Bone & Joint Clinic stating that
she was unable to work until April 29th. 28
On
May
1,
2013,
Asher
completed
the
paperwork
needed
to
support her request for FMLA leave and provided DRS a Certification
of Health Care Provider for Employee's Serious Health Condition
stating that "she cannot sit for more than 8-9 hours," that she
suffers from "chronic back pain," and that she should work "no more
24
Plaintiff's Deposition, Docket Entry No. 16-4, p. 126:7-13.
See also Plaintiff's Affidavit, Docket Entry No. 19-1, p. 7 ~ 20
(stating that after she took two days off in April of 2013 because
of back pain, she got e-mails from Berry, who was trying to force
her to make up lost time by working more than her regular hours).
Amos Declaration, Docket Entry No. 16-2, ~ 9; Exhibit 1
thereto, DRS/Asher 00174-75 (Notice of Eligibility and Rights &
Responsibilities
(Family and Medical Leave Act))
and 00176
(Designation Notice (Family and Medical Leave Act)).
25
26
Amos Declaration, Docket Entry No. 16-2,
~
9.
27
Id.
See also Exhibit 1 thereto, DRS/Asher 00170 (PrimeCare
Medical Group Return to Work form) .
28
Id. See also Exhibit 1 thereto, DRS/Asher 00183 (Letter from
Richmond Bone & Joint Clinic signed by Fayyaz Ahmed MD) .
-8-
than 9 hours per day." 29
On May 2, 2013, URS granted plaintiff's
request for FMLA leave. 30
On May 3, 2013, an internal audit of collection calls being
made by URS in preparation for an audit of URS's Chase account
discovered a call that Asher had placed on April 29, 2013, in which
she
failed
to
provide
the
Quality Assurance
Statement
at
the
beginning of the call and gave the Mini-Miranda Statement before
verifying the identity of the person with whom she was speaking,
thus disclosing that she was calling about a debt before knowing
with whom she was speaking. 31
2013,
call
occurred
The errors made during the April 29,
after Asher
had
received
a
Final
Written
Warning on April 10, 2013, admonishing her that future errors in
violation of the FDCPA would result in termination.
The decision
to discharge Asher was made by Berry in consul tat ion with Donovan. 32
On May 7, 2013, Donovan discharged Asher in McArthur's presence. 33
29
Id.
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