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Jayda Champion Hill v. Branch Banking and Trust Company

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

August 31, 2017

JAYDA CHAMPION HILL, Plaintiff,
v.
BRANCH BANKING AND TRUST COMPANY, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Jayda Champion Hill sued her former employer, Defendant Branch Banking and Trust Company, alleging that the Bank had discriminated against her on the basis of a disability, failed to provide reasonable accommodation for her disability, interfered with her FMLA rights, retaliated against her for requesting accommodation for her disability and exercising her FMLA rights, and for state law claims of invasion of privacy and intentional infliction of emotional distress. (Doc. 1). BB&T moved for summary judgment on all of Ms. Hill's claims. (Doc. 23). As discussed in this opinion, the court will grant in part the motion as to the ADA discrimination, ADA failure to accommodate, invasion of privacy, and intentional infliction of emotional distress claims, but deny in part as to the FMLA interference and retaliation claims.

         I.BACKGROUND

         A. BB&T's Oxford Branch

         BB&T hired Ms. Hill as a “Branch Banker III” in the Oxford branch. Ms. Hill reported to Sharon Brooks, Teller Supervisor, and Melissa Craven, Market Leader. Allie Norred was the senior teller at the branch.

         B. Ms. Hill's FMLA Leave

         On Wednesday, September 24, 2014, Ms. Hill had surgery to remove her gallbladder. Ms. Hill requested, and BB&T approved, FMLA leave from the date of the surgery until October 5, 2014. Ms. Hill testified that Ms. Brooks pressured her into returning to work on October 6 and that her doctor had originally told her she should take somewhere between three and six weeks off. Ms. Hill says she asked for less leave time because of Ms. Brooks' pressure.

         Ms. Hill claims that when she informed Ms. Brooks she would need surgery the next day to remove her gallbladder, Ms. Brooks said employees at the bank who had gallbladder surgery were typically out less than a week, and that she should return to work on Monday. When Monday came, Ms. Hill felt too sick to work. She called Ms. Brooks to tell her she could not work that day. Ms. Hill says that Ms. Brooks sounded “angry, ” but told her it was fine and to come in the following day. Ms. Hill still was not feeling well the next day and again called Ms. Brooks, who told her to just take the whole week off.

         On Thursday, October 2, BB&T sent Ms. Hill the FMLA leave paperwork, listing October 6 as the date Ms. Hill would return to work. Ms. Hill informed her doctor that BB&T needed her back on the date, and he approved the request. On that same date, Ms. Brooks sent Ms. Hill a text message asking when Ms. Hill was returning to the doctor and when she would be released because she needed the information to create a work schedule for the next week. Ms. Hill responded that she would be going on October 16, to which Ms. Brooks said, “Your [sic] not coming back till the 16?” Ms. Hill did not respond to that question. The next day, Ms. Hill texted Ms. Brooks to ask if she had received her release papers. Ms. Brooks said she had not received them yet. Ms. Hill ultimately returned to work on October 6.

         After Ms. Hill's gallbladder surgery, she suffered from diarrhea for approximately nine months. At her deposition on August 26, 2016, Ms. Hill said she did not consider herself disabled at that time and believed she was able to work. Ms. Hill's doctor testified that her postoperative condition limited her ability to control her bowels and substantially affected her ability to work, walk, sit, or eat, without easy access to a bathroom.

         Ms. Hill testified that when she returned to work, she gave Ms. Brooks a note from her doctor indicating that she would need to use the bathroom more frequently as a result of her surgery; Ms. Hill also asked not to be assigned to drive-through. Ms. Brooks does not remember any conversations with Ms. Hill regarding her need for more frequent bathroom visits and does not recall her complaining about it. However, Ms. Hill says she told her coworkers and Ms. Craven when she returned to work that she would require increased bathroom visits.

         The Oxford branch of BB&T has a drive-through window. The teller working the drive-through window is separated from the other teller windows. A restroom is located a few seconds walk from the drive-through window.

         Kim Robertson was in charge of making the work schedule for the branch, including determining which tellers would work the drive-through window. In her role as Teller Supervisor, Ms. Brooks said she would pass the schedules out but did not have authority to make any changes to the document. However, other employees testified that Ms. Brooks had the authority to assign a teller to work the drive-through window and that, regardless of what the schedule may say, she could assign an employee to that station. Ms. Hill testified that even when the schedule said she was to work in the lobby, Ms. Brooks would tell her there had been a “change of plans” and tell her to work the drive-through.

         Ms. Norred said she personally did not enjoy working the drive-through. Some employees enjoyed working the drive-through less than the lobby. Ms. Hill testified that the schedule would force her to work the drive-through for six to seven hours at a time, and required her to work an hour and a half more than the lobby tellers. Ms. Hill claims that she lost the opportunity to receive $100-$150 biweekly in bonuses by being scheduled to work in the drive-through so much. BB&T had an incentive program that rewarded employees for selling financial products to customers. Customers going through the drive-through would not be completing the sort of transactions where a teller could “upsell.” However, Ms. Hill admits that she was not sure if she was reaching her incentive goal prior to her leave, and that if she was hitting her bonus targets, it was only when two other tellers were out.

         Before taking FMLA leave, Ms. Hill worked the drive-through every Tuesday. After returning from her surgery, Ms. Hill says she was assigned to work almost exclusively in the drive-through and was tasked to that position more frequently than other tellers. Ms. Brooks and Ms. Reynold both testified it would not be unusual for a teller to work the drive-through for a full week and Ms. Reynolds said she did not recall Ms. Hill working the drive-through more frequently than other tellers.

         If a teller working the drive-through needed to go to the restroom, she was supposed to call or message the main lobby to find a teller to cover for her. If all of the tellers were busy with clients, the tellers were instructed to finish serving their current client before moving to relieve the teller in the drive-through. Ms. Craven had also informed employees that platform-side employees (those not working the “front desk” of the bank) were also available to relieve a teller in the drive-through.

         The parties dispute whether BB&T had a policy prohibiting a teller from leaving the drive-through unattended. Ms. Brooks testified BB&T did not have an official policy but that the procedure was out of general respect for clients. Although disciplinary action would not be taken against the employee, Ms. Brooks said that a teller who left the drive-through unattended would be coached not to do so, and that she had conversations with every employee at the Oxford branch, including Ms. Hill, about the importance of ensuring the drive-through was attended. Ms. Reynolds testified that Ms. Craven did not like the drive-through left unattended, but on occasions she “just had to” if she was not able to get another teller to cover for her while she was working the drive-through. Ms. Hill says Ms. Craven had “verbally disciplined” her for leaving the drive-through unattended and so she feared to do so again.

         On two occasions while working the drive-through, Ms. Hill could not find anyone to relieve her, and left the drive-through unattended while going to the bathroom. BB&T did not discipline Ms. Hill. Ms. Hill observed that the tellers in the lobby were not helping customers at the time when she needed relief, and says she had to wait an average of 20 to 30 minutes for another teller to relieve her. Ms. Reynolds testified she never had an issue with tellers delaying relieving her. Ms. Hill testified that she experienced severe cramps when she delayed using the restroom and that she had to leave work early one day after she soiled her pants because on an episode of uncontrollable diarrhea.

         Ms. Hill never called BB&T's hotline or human resources department to complain about not being able to obtain coverage to use the restroom while working the drive-through. Ms. Hill complained to Ms. Craven about her position at least once a week, but Ms. Craven just referred her to Ms. Brooks. Ms. Brooks testified that an employee with complaints could bring them to her, or if the employee felt that she could not go to her, to Ms. Craven. On one occasion, Ms. Hill asked a supervisor for the number of BB&T's ethics hotline so that she could complain, but it was not given to her and she could not locate it in the employee handbook.

         On October 26, 2014, Belinda Reynolds' son passed away. She requested not to be assigned to work the drive-through window for a few days because she wanted to be around other people. BB&T says any increase in Ms. Hill being scheduled to work the drive-through was because of Ms. Reynolds' request. After her son passed away, Ms. Reynolds committed several errors and received disciplinary action, including a final written warning. She was then transferred to a smaller, less busy branch.

         Ms. Hill complained about the work environment of the bank, comparing it to the movie Mean Girls and claiming that Ms. Brooks and Ms. Norred ridiculed her and gossiped about her in an effort to make her quit. Ms. Hill claims Ms. Brooks talked about her condition to BB&T employees in other branches and also told them Ms. Hill had talked to her in a disrespectful manner when she requested an accommodation. Ms. Hill felt that when she would walk into a room, people would sneer at her.

         C. ICE Exception

         Pearlie Dunson, BB&T's Area Operations Officer, conducts random audits of BB&T branches and provides internal control exceptions (known as “ICE exceptions) to employees who commit errors. ICE exceptions do not result in written discipline, suspension, or pay reduction. Ms. Reynolds testified that an ICE exception was given when an employee committed a “big no-no” and that it “probably” counted against an employee in a performance evaluation. However, Ms. Reynolds also said she considered an ICE exception to be a learning opportunity more than a form of discipline.

         Ms. Dunson issued Ms. Hill an ICE exception for not properly completing a “Commercial Deposit Bag Delivered Over the Counter” form. When filling out the form, Ms. Hill omitted the branch location, the center number, the date, and the time received for the deposit. Ms. Norred completed a “Nightly Deposit Daily Checklist, ” which indicated that the commercial deposit bag form completed by Ms. Hill was correctly filled out. Ms. Dunson testified that she did not issue Ms. Norred an ICE exception because her random audit had only called for an audit of the form Ms. Hill filled out and not the one Ms. Norred completed.

         D. Promotion

         Either in late November or early December 2014, BB&T hired Nancy Lopez to replace a branch banker who was leaving. Ms. Hill had assumed she would receive a promotion to that position, as she had completed all the requisite training for the position and Ms. Craven had informed her she would be given the position when the bank hired more tellers.

         Ms. Lopez is bilingual, and BB&T claims that its Oxford branch is required to have a bilingual employee. In April 2014, BB&T replaced the previous bilingual Oxford employee with Ms. Hill, who is not bilingual. BB&T never inquired whether Ms. Hill was bilingual. Ms. Hill also says that Spanish-speaking customers rarely did business in the Oxford branch, and that BB&T offered a phone number customers needing a translator could call.

         Ms. Craven took down the name plaques on a wall in the bank listing the branch bankers. Ms. Hill says her and another teller's plaques were removed, while Ms. Craven's and Ms. Brooks' names remained on the wall.

         E. Black Friday and “Force Balancing”

         BB&T has a policy against “force balancing.” Force balancing occurs when a teller reports a zero balance for a drawer knowing the drawer is out of balance.

         BB&T policy requires that a teller “show any cash difference on the same day in which the difference occurs.” The policy instructs tellers to follow specific procedures when they find their drawers out-of-balance. If the difference is $25.00 or less, the teller is just supposed to record the discrepancy on her general ledger. The policy also provides that a teller should report a difference in her drawer of more than $1, 000 within three days.

         Ms. Hill, having reviewed these policies, was aware that she was supposed to record any discrepancies she found while balancing her drawer. On the day after Thanksgiving, “Black Friday, ” November 28, 2014, Ms. Hill was working the drive-through window. After a long and hectic day, she was tired and wanted to go home. When Ms. Hill went to balance her drawer, she found that she had an overage-she had more money in her drawer than the ledger said she should have had. Ms. Hill believed the overage was the result of her and Ms. Reynolds swapping money earlier in the day.

         Ms. Hill called Ms. Norred, and she says Ms. Norred told her that Ms. Reynolds would come and get $20 from her drawer to correct the imbalance. Ms. Hill acknowledges that she should have posted her overage rather than taking money out of her drawer to put in Ms. Reynolds' drawer to correct the imbalance. However, Ms. Hill says she was acting on Ms. Norred's instructions when she did not post the overage.

         The parties dispute whether Ms. Norred had supervisory authority over Ms. Hill. What is undisputed is that Ms. Norred was the senior teller on duty on Black Friday. Ms. Norred first testified that Ms. Craven was not present on that day, but later testified that she was working. Regardless, Ms. Norred did not report the out-of-balance incident to Ms. Craven on that day, despite knowing that she should have done so.

         On December 1, 2014, the following Monday, Ms. Norred did inform Ms. Craven that Ms. Hill may have force balanced on Black Friday. Ms. Craven asked Ms. Dunson to perform an audit of Ms. Hill's drawer. Ms. Dunson and Ms. Brooks counted Ms. Hill's drawer and determined there was a $25 overage, and that because the posted amount did not match the amount in the drawer, Ms. Hill had force balanced. Ms. Dunson also filed a suspicious incident report.

         On December 9, 2014, Senior Corporate Investigator Joe Rowe investigated the incident. As part of the inquiry, Ms. Hill wrote a statement admitting that she had given money from her drawer to Ms. Reynolds and that she force balanced. Ms. Hill says that Mr. Rowe “made me sign a paper saying I force balanced.” Mr. Rowe prepared a report on his investigation.

         Angie Parker, Regional Associate Relations Manager, reviewed Mr. Rowe's report. Ms. Parker notified Leah Junkins, Retail Banking Manager, that a significant violation of BB&T policy had occurred. Force balancing is grounds for immediate termination. Ms. Dunson testified that BB&T had terminated a teller at another branch after discovering that her drawer contained less money than reported.

         Based on Ms. Hill's statement, Ms. Parker concluded that Ms. Hill intentionally force balanced her drawer when it had an overage. BB&T terminated Ms. Hill's employment on December 11, 2014.

         F. Other Policy Violations

         Other employees at the Oxford branch violated BB&T's policies and were not terminated. Mark Reynolds, a teller, cashed a fraudulent check. Ms. Reynolds testified, “If it can be done wrong, I've done it it seems like.” Ms. Brooks violated ...


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