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Moore v. Verizon Wireless (VAW), LLC

United States District Court, N.D. Alabama, Northeastern Division

March 31, 2017

MARTHA S. MOORE, Plaintiff,



         This 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.


         Plaintiff 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).

         Plaintiff 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.).

         During 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.).

         Plaintiff 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. at 8).

         On 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).

         Plaintiff 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 leave. (Id.).

         When 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.).

         Plaintiff 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.).

         From 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. (Id.).

         In 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).

         In the 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).

         During 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).

         The 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 at 2).

         Plaintiff 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.).

         Two 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.).

         Plaintiff 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).

         Defendant 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 ...

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