United States District Court, N.D. Alabama, Northeastern Division
MARTHA S. MOORE, Plaintiff,
VERIZON WIRELESS (VAW), LLC, Defendant.
G. CORNELIUS U.S. MAGISTRATE JUDGE
matter is before the court on Defendant Verizon Wireless
(VAW), LLC's motion for summary judgment. (Doc. 28). In
her complaint, Plaintiff Martha Moore asserts four claims:
(1) discriminatory termination on the basis of a disability
in violation of the Americans With Disabilities Act, 42
U.S.C. § 12101 et seq. (the “ADA”);
(2) retaliatory termination on the basis of a disability in
violation of the ADA; (3) interference with a right conferred
by the Family and Medical Leave Act of 1993, 29 U.S.C. §
2611 et seq. (the “FMLA”); and (4)
retaliatory termination in violation of the FMLA. (Doc. 1).
Plaintiff responded to the motion for summary judgment (Doc.
33), and Defendant replied. (Doc. 37). This matter is now
ripe for review. The parties have consented to magistrate
judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc.
17). For the reasons that follow, the court finds Defendant
is entitled to summary judgment on all counts.
started working for Defendant in 2007 as a supervisor in the
customer service department. (Doc. 30 at 3). In that role,
Plaintiff supervised customer service representatives who
took and answered calls regarding products, billing, and
service issues. (Id.). Plaintiff was responsible for
monitoring the calls of her subordinates, coaching them on
their handling of customer concerns, and providing day-to-day
operational maintenance. (Id. at 4).
reporteded directly to an associate director. (Id.
at 5). Defendant rotates teams of employees among the
associate directors every six months, so during the time
Plaintiff worked for Defendant, she was assigned to several
different associate directors. (Id.). The associate
directors report to Director Jeremiah Knight. (Id.).
her employment with Defendant, Plaintiff applied for and was
granted several leaves of absence pursuant to the FMLA as a
result of various health conditions. (Id. at 7).
Plaintiff was granted FMLA leave in June 2008, March 2009,
June 2009, August 2010, and September 2010. (Id.).
also applied for and was granted leave from July 13, 2011,
through September 4, 2011. (Id.). Prior to beginning
her leave in July 2011, Plaintiff handled a call on June 21,
2011. (Id.). Defendant alleges Plaintiff
“treated the store representative as someone who was
trying to work outside of policy instead of treating her as a
peer.” (Id.). Upon her return from FMLA in
September 2011, Plaintiff resumed her role as a supervisor.
(Doc. 30 at 7-8). At that time, Plaintiff was provided with
an accommodation allowing her to sit down rather than walking
the floor while supervising her subordinates. (Id.
September 8, 2011, Plaintiff handled a customer call.
(Id.). Plaintiff used a phrase which Michelle
Campbell, her associate director at the time, considered
inappropriate. (Id.). Campbell issued a written
warning on the basis of the June 21, 2011 and September 8,
2011 calls. (Id.). Plaintiff states this warning-at
least as it related to the June 2011 incident-had
“expired” by the time of her termination. (Doc.
33 at 12).
next took approved FMLA leave for a broken wrist from
February 12, through 29, 2012. (Id. at 9). While on
leave, Plaintiff called in and spoke every week with David
Brandi, her associate director at the time. (Id.).
Plaintiff and Brandi would discuss work matters, including
disciplinary actions and customer-related questions.
(Id.). On one occasion, Moore called into an office
meeting and was asked to drop off the call because she was on
Plaintiff returned from leave on February 29, 2012, she
resumed the same position, responsibilities, and title.
(Id. at 10). Upon her return, Plaintiff reported to
Associate Director Raquel Insignares. (Id.).
Plaintiff applied for and was granted an accommodation in the
form of a “Dragon” voice automated system so that
she would not be required to type. (Id.).
complains of three incidents involving Brandi. First, Brandi
failed to return Plaintiff to the payroll system following
her return from leave because he mistakenly believed
Insignares had done so. (Id.). This resulted in the
delay of a paycheck Plaintiff should have received on March
14, 2012. (Id.). Verizon corrected the error
immediately once it became known, and Plaintiff was issued a
check five days after her normal payday. (Id.).
However, Plaintiff viewed these events as the result of
Brandi's lack of knowledge about his job
responsibilities. (Id.). Second, Plaintiff complains
that sometime in March 2012, co-workers brought Plaintiff
some ice for her wrist. (Id.). While Plaintiff and
her coworkers were talking, Brandi walked by and said,
“What's this? What's this? Well, she's just
got everybody waiting on her hand and foot.” Plaintiff
viewed this as a slight against her but concedes Brandi may
have been joking. (Doc. 30 at 10). Finally, after Plaintiff
was promoted to a supervisor in technical support on June 10,
2012, she was told that Brandi expressed the opinion that
Plaintiff was not qualified for the job during a meeting in
which several associate directors were discussing who would
be awarded this position. (Id.).
September 30, 2012, until her termination, Plaintiff was
again assigned to report to Insignares. (Doc. 30 at 12).
Moore does not dispute that she had a positive relationship
with Insignares and requested to work with her.
December 2012, Plaintiff began to suffer migraine headaches.
(Doc. 33 at 5). Her migraines caused sensitivity to light,
nausea, and intense pain. (Id.). It was difficult
for Plaintiff to move during a migraine, and sudden bouts of
nausea would occasionally require her to leave the work
floor. (Id.). Insignares denies that she and
Plaintiff discussed Plaintiff's headaches in December
2012. (Doc. 31-8 at 8). Insignares states she was only ever
aware that Plaintiff suffered headaches, not specifically
migraines, and did not become aware of the headaches at all
until after January 11, 2013. (Id. at 7-8).
morning of January 11, 2013, Plaintiff took a call (the
“January 11 call”) from a customer who was upset
because a local store had not provided a “loaner”
phone for him to use while his own phone was not working.
(Doc. 30 at 13). The customer requested to speak to a
supervisor, and the call was transferred to Plaintiff.
(Id.). Plaintiff and the customer then engaged in an
argument about whether he would have to pay the shipping cost
for Saturday delivery of a replacement phone. (Id.).
The parties dispute whether Plaintiff properly sought
assistance from peers or supervisors during the call. (Doc.
31-2 at 19, 23).
the January 11 call, both the customer and his wife spoke
with Plaintiff. (Audio Recording, filed January 4,
2016; see Doc. 29). The customer stated he was upset
because without a functional phone, he would lose his job.
(Id.). Plaintiff can be heard blaming the customer
for not ordering a replacement in time to get it over the
weekend. (Id.). When speaking to the customer's
wife, she stated, “I need to make something clear to
you … That's why we're in this position, is
based on your husband's decision.” (Id. at
6 minutes, 53 seconds).
customer asked to speak to a supervisor above Plaintiff's
level of authority, but Plaintiff would not transfer him
during the call. (Doc. 31-2 at 19). Plaintiff states this is
because no appropriate supervisor was present, but Defendant
asserts she could have excused herself and allowed a peer or
an associate director to handle the call; she could also have
initiated a “call-back” to arrange for the
customer to speak with someone else. (Id.; Doc. 37
repeatedly insisted to the customer that if he wanted
Saturday delivery of a replacement phone, he would have to
pay a $14.99 shipping fee because, although Defendant
provided free standard shipping, the call was taking place on
a Friday. To get the phone there on Saturday would require
expedited shipping, which Plaintiff asserted was not within
her discretion to arrange for free. (Doc. 31-2 at 21).
Plaintiff maintains she did not have discretion to grant free
overnight shipping for the customer because a company
directive prohibited supervisors from waiving special
shipping fees. (Id.).
recordings of the January 11 call exist. In the shorter
recording, it appears Plaintiff hung up on the customer
because the sound cuts off during the conversation. (Doc. 33
at 6-7). In a longer version, which was not submitted into
evidence, Plaintiff can be heard continuing the conversation
as the customer hands his phone to his wife. (Id. at
7). Plaintiff can be heard apologizing to the customer for
the problems, completing his order, and issuing an expected
delivery date for the replacement phone. (Id.).
Plaintiff claims it is clear from the longer recording that
the customer hung up. (Id.). Defendant's
position is that it sounds as though Plaintiff hung up on the
customer in both versions of the call and that Plaintiff was
confronted with the longer version during a meeting with
Insignares and conceded it sounds like she hung up on the
customer. (Doc. 37 at 2). The parties dispute whether it was
the longer recording or the shorter recording which
Insignares played for Plaintiff during their meeting on
January 14, 2013. (Doc. 34-1). Plaintiff states she
emphasized to Insignares during their meeting that she did
not hang up on the call and that her tone would have been
better if she had not been suffering from a
“full-blown” migraine. (Id.). Plaintiff
told Insignares, “I barely knew what my own name was, I
was in so much pain.” (Doc. 31-2 at 35). Following the
January 11 call, the customer called again and reported he
was unhappy. (Doc. 31-2 at 24). The customer stated in his
follow-up that Plaintiff had hung up on him. (Id.).
had already begun to see a physician about her condition by
the time of the January 11 call. (Doc. 33 at 5) (stating
Plaintiff started seeking medical assistance for her
migraines in “late 2012”). Plaintiff had an
appointment with her doctor on January 9, 2013, but had to
cancel it because she was told that a work meeting was
mandatory. (Id.). Plaintiff alleges Insignares was
aware of the doctor's appointment and the reason for it
and was told she would have to rearrange it because of the
meeting. (Doc. 31-1 at 36). Plaintiff states she was told by
Insignares, “This is a mandatory meeting, and you have
to be there.” (Doc. 33 at 5). Plaintiff alleges the
January 11 call would have been handled better if she had
been allowed to attend her doctor's appointment because
her migraines would have been treated. (Id. at 5).
states, on the basis of Insignares's testimony, that
Plaintiff was not told she had to attend the meeting on
January 9, 2013. (Doc. 37 at 1). Thus, Defendant denies
Plaintiff's assertion that it prevented her from going to
her doctor's appointment and getting the help she needed
for her migraines. Further, Defendant denies whether ...