United States District Court, N.D. Alabama, Eastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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
BB&T's Oxford Branch
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.
Ms. Hill's FMLA Leave
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Black Friday and “Force Balancing”
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.
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.
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.
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.
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.
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.
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
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.
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.
Other Policy Violations
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 ...