Holyoak v. Wells Fargo Bank National Association

Filing 36

MEMORANDUM DECISION and ORDER granting 20 Defendant's Motion for Summary Judgment. Signed by Judge Dee Benson on 5/22/2017. (blh)

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IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH , .
f11STH\CT Of \j lAll
CENTRAL DIVISION
~·'.

NANCY NESS-HOLYOAK,
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.

WELLS FARGO BANK, NATIONAL
ASSOCIATION,

Case No. 2:15-CV-544-DB

Defendant.

Before the Court is Defendant, Wells Fargo Bank's ("Wells Fargo"), motion for summary
judgment. [Dkt. 20]. A hearing was held on May 8, 2017 at which Plaintiff, Ms. Nancy NessHolyoak ("Ms. Ness-Holyoak") was present and represented by Mr. David J. Holdsworth. Wells
Fargo was represented by Mr. Rick Roskelley. Based on the parties' written and oral arguments
and the relevant facts and the law, the Court hereby enters the following Order.

BACKGROUND
Plaintiff worked for Wells Fargo as a customer service representative in its Salt Lake City
call center from 2008 to 2014. Her job duties included answering telephone calls from customers

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and resolving their questions and complaints. 1
During her six years of employment, Wells Fargo accommodated numerous requests by
Ms. Ness-Holyoak for leave and for a reduced work schedule. Ms. Ness-Holyoak followed the
appropriate procedures as outlined in the employee handbook when making these requests. In
July, 2012, she took a leave of absence and periodic intermittent leave throughout the Spring of
2014 to undergo breast cancer surgery, treatment and care. In the Fall of 2013, Wells Fargo
approved a leave of absence and intermittent leave Ms. Ness-Holyoak requested as a result of her
diagnosis with an acute stress reaction and depression. Later, she requested that she be allowed
to work a reduced schedule of six hours per day as an accommodation for her disability, which
was granted.
At times throughout her employment, Ms. Ness-Holyoak commented to her supervisors
that she believed she received more difficult ("escalated") calls and a greater number of calls
than her coworkers. According to her supervisors, the concern she expressed was never tied to
her disability. Her supervisors repeatedly assured her that all calls are distributed randomly.
They explained that there was no way to decrease the number of escalated calls that any one team
member answered because it was impossible to know which customer was upset or angry prior to

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Throughout her employment, Ms. Ness-Holyoak had various performance issues
including receiving a Final Notice for Violation of Wells Fargo's Code of Ethics and Business
Conduct after she caused customer infonnation to be compromised and improperly accessed by a
third party. Ms. Ness-Holyoak's 2010 through 2013 performance reviews also show that she
consistently failed to keep her average call handle time at the level expected of employees in her
position. Over the course of her employment, her supervisors spent extra time working with her,
coaching her on ways to more effectively handle calls.

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the call being answered by the customer service representative to whom the call was randomly
assigned. She was reminded, however, that if a caller was upset or inappropriate, she could
always forward that call to her supervisor. In an effort to work with her, one of her supervisors
asked her to keep a record of calls she believed were escalated so they could review them
together, but Ms. Ness-Holyoak never did so. Her employment was ultimately terminated in
November, 2014 after she failed to report to work for three months without approval.
Ms. Ness-Holyoak's suit against Wells Fargo alleges that the bank violated the
Americans with Disabilities Act ("ADA") by failing to accommodate her stress and depression
disability. The accommodation she wanted was for her supervisors to ensure that her coworkers
answered their fair share of escalated calls. If they did, Ms. Ness-Holyoak asserts, her number of
escalated calls would have decreased. 2
Wells Fargo moves for summary judgment on the grounds that: (1) Ms. Ness-Holyoak did
not sufficiently request an accommodation for her disability pertaining to the distribution of
escalated calls; and (2) even if she had, the request was unreasonable.

FAILURE TO ACCOMMODATE CLAIM
To establish aprimafacie case of failure to accommodate in accordance with the ADA, a
plaintiff must show that: (1) she is a qualified individual with a disability; (2) the employer was
aware of her disability; and (3) the employer failed to reasonably accommodate the disability.

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In her Complaint, Ms. Ness-Holyoak also alleges claims for discrimination and
retaliation und,er the ADA. However, in her written and oral arguments, she conceded to
summary judgment on those causes of action.
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Allen v. SouthCrest Hosp., 455 F.App'x 827, 834 (10th Cir. 2011). See also, Anderson v. Coors
Brewing Co., 181 F.3d 1171, 1175 (101h Cir. 1999). The plaintiff also has the burden of showing
that she "sufficiently requested the accommodation in question." Freadman v. Metro. Prop. &

Cas. Ins. Co., 484 F.3d 91, 102-03 (1st Cir. 2007)(citations omitted). The request must be
sufficiently direct and specific, and explain how the accommodation requested is linked to a
disability. Id. at 102-03. Plaintiff must show that the proposed accommodation is reasonable that it will "'enable her to perform the essential function of her job' and that 'at least on the face
of things, it is feasible for the employer under the circumstances."' Id. (quotations and citations
omitted). "It is axiomatic, however, that an employer is not required to relieve an employee of an
essential job function." EEOC v. Picutre People, Inc., 684 F.3d 981, 987 (10th Cir. 2012).

A. Request For Accommodation
Wells Fargo's employee handbook prescribes the procedure an employee must follow to
request an accommodation due to a disability. The procedure requires an employee to discuss
her needs and make her request to her supervisor and the Wells Fargo Accommodations
Management Department.
While she admits that she knew of the required procedure, and that she had previously
followed the procedure to obtain a reduced work schedule as an accommodation for her
disability, it is undisputed that Ms. Ness-Holyoak never made a request to the Accommodations
Management Department regarding the distribution of escalated calls. While she did complain to
her supervisors, both before and after her diagnosis, about the number of escalated calls she
received, she did not relate her complaints to her disability or state in any way that she was

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seeking an accommodation for a disability. It was Ms. Ness-Holyoak's responsibility to follow
the procedure for requesting an accommodation under the ADA.
B. Reasonable Accommodation

Even if Ms. Ness-Holyoak's complaints to her supervisors could be construed as a
request for accommodation, such a request was unreasonable. It is undisputed that answering
complex and escalated calls is an essential function of the customer service representative
position. The ADA does not require employers to eliminate or modify an essential job function.
Mason v. Avaya Commc Inc., 357 F3.d 1114, 1123 (10 1h Cir. 2004)("the ADA does not ...
require an employer to modify an essential function of an existing position in order to
accommodate a disabled employee"); Picture People, Inc., 684 F.3d at 987-88.
Additionally, Ms. Ness-Holyoak has presented no evidence that she received an unequal
share of escalated calls. She points to no independent or objective admissible evidence to
support her position. The record establishes that incoming calls to the call center are handled on
a first-come first-served basis and are assigned to the various customer service representatives
randomly. There is no specific telephone line or queue that exists for angry or upset customers.
There is no way to determine the nature of a customer's call without a customer service
representative first answering the call. If an employee receives a call from an extremely upset
customer, the representative has the option of forwarding the call to a supervisor. Ms. NessHolyoak admitted that she knew she could have forwarded escalated calls to her supervisors.
Based on the undisputed facts in the record, the Court finds that Ms. Ness-Holyoak did
not follow the required procedure or otherwise request an accommodation for her disability

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pertaining to the distribution of escalated calls. Additionally, even if she had, her request was
unreasonable because Wells Fargo has no way to determine which customers are angry without
customer service representatives first answering the randomly distributed calls. Answering
customers' calls is an essential function of the position Ms. Ness-Holyoak held.

CONCLUSION
Defendant's Motion for Summary Judgment on all causes of action is hereby GRANTED.
The Court hereby directs the Clerk of the Court to DISMISS this action with prejudice.

IT IS SO ORDERED

DATED this

iz.

day of May, 2017.

1)~ ;)~~11-DeeBenson
United States District Judge

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