United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
C. BURKE U.S. DISTRICT JUDGE
Cedric Atchison, asserts claims against his former employer,
Cellco Partnership d/b/a Verizon Wireless
(“Verizon” or “defendant”), for race
discrimination and retaliation pursuant to 42 U.S.C. §
1981, and for interference with his rights under the Family
Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.
§ 2601 et seq. This memorandum opinion
addresses defendant's motion for summary judgment (Doc.
30). After considering the motion, the parties' briefs,
and the evidentiary submissions, this court concludes the
motion is due to be granted in part and denied in part.
STANDARD OF REVIEW
district court should grant summary judgment “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
mater of law.” Fed.R.Civ.P. 56(a). A genuine dispute as
to a material fact exists “when ‘the evidence is
such that a reasonable jury could return a verdict for the
non[-]moving party.'” Quigg v. Thomas County
School District, 814 F.3d 1227, 1235 (11th Cir. 2016)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)) (alteration in original). All facts and
inferences must be construed in the light most favorable to
the non-moving party. Ranbaxy Laboratories, Inc. v. First
Databank, Inc., 826 F.3d 1334, 1338 (11th Cir. 2016)
(citing Mathews v. Crosby, 480 F.3d 1265, 1269 (11th
Cir. 2007)). But that favorable construction is not
unlimited. “In opposing a motion for summary judgment,
the nonmoving party ‘must do more than simply show that
there is some metaphysical doubt as to the material
facts.'” Transcontinental Gas Pipe Line Co.,
LLC v. 6.04 Acres, More or Less, Over Parcel(s) of Land of
Approximately 1.21 Acres, More or Less, Situated in Land Lot
1049, 910 F.3d 1130, 1154 (11th Cir. 2018) (quoting
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574 (1986)). “In other words, if
the evidence produced by the nonmoving party is ‘merely
colorable, or is not significantly probative, summary
judgment may be granted.'” Transcontinental Gas
Pipe Line Co., LLC, 910 F.3d at 1154 (quoting
Anderson, 477 U.S. at 249-50).
STATEMENT OF FACTS
Cedric Atchison, a black male, worked as a retail sales
associate in a Verizon Wireless store in Trussville, Alabama.
In the spring of 2014, he suffered complications from oral
surgery that required him to take time off work. (Doc. 30-1,
p. 18-19 (Atchison Depo., p. 62-65, 67-68)). He applied for
FMLA leave and short-term disability benefits from MetLife,
the third party that administered leave for all Verizon
employees. The application was approved, allowing plaintiff
to take FMLA leave and receive short-term disability payments
from April 19, 2014, to June 22, 2014. (Doc. 30-1, p. 127
(Ex. 7), p. 138 (Ex. 15), p. 150 (Ex. 20)). Plaintiff
returned to work on June 23, 2014, even though he did not
think he was physically and emotionally ready, because his
approved leave had expired. (Doc. 30-1, p. 22 (Atchison
Depo., p. 78-80)).
worked through August 22, 2014, but he had a car accident on
August 23 and did not return to work after the accident. In
fact, he testified that he “shut it down, ” not
driving or leaving his house at all because he suffered a
visible facial injury in the accident. Plaintiff informed
Kathy Williams, a co-worker who had been designated as the
person responsible for communicating with plaintiff about his
leave, that he would need additional time off work. Williams
told him to take care of himself and not to push it if he did
not feel like it. He also tried to inform his supervisor,
Kerry Gould, who is white, but Gould either did not answer
his calls or simply instructed him to talk to Williams
instead. Finally, he discussed his need for additional leave
with Michelle Dennis, Verizon's Human Resources Business
Partner for the region encompassing plaintiff's store.
Dennis told him to check in with his supervisor and
“follow the correct channels” with MetLife.
(Id., p. 96-102).
sent plaintiff a letter on October 15, 2014, stating that,
because his FMLA leave and short-term disability benefits had
expired, his “continued absence from the workplace is
considered unauthorized, unexcused and attendance
impacting.” (Doc. 30-1, p. 146 (Ex. 18)). Verizon
informed plaintiff that, by October 22, 2014, he should
either return to work, with medical documentation supporting
his absence since the end of his leave period, or provide
medical documentation to support his continued need to remain
off work. If he did not comply, he would be placed on an
unauthorized leave of absence, and his employment would be
subject to termination for job abandonment. (Id.).
On October 16, 2014, plaintiff submitted an appeal of
MetLife's decision to close his first claim for FMLA
leave and short-term disability benefits as of June 22, 2014.
(Doc. 30-1, p. 25 (Atchison Depo., p. 90), p.. 148-149 (Ex.
19)). MetLife denied that appeal on October 22, 2014. (Doc.
30-1, p. 150 (Ex. 20)).
also submitted a second claim for FMLA leave and short-term
disability beginning September 7, 2014. (Doc. 30-1, p. 25, 30
(Atchison Depo., p. 90, 111-112)). MetLife denied the new
claim for short-term disability benefits on October 22, 2014.
(Doc. 30-1, p. 151-152 (Ex. 21)). Also on n October 22, 2014,
MetLife informed plaintiff that he met the minimum
eligibility requirements for additional FMLA leave, meaning
that he had not exhausted his available leave hours for that
year. (Doc. 30-1, p. 153 (Ex. 22)). Even so, it sent him
another letter on October 23, 2014, stating that he would
need to submit a Health Care Provider Certification form
within seventeen days in order to be approved for a leave of
absence. (Doc. 30-1, p. 154 (Ex. 23)).
testified at deposition that he either provided the requested
information or directed his doctor to provide the
information. (Doc. 30-1, p. 25, 41 (Atchison Depo, p. 90,
114)). He also stated in his affidavit that his doctor faxed
the requested information to MetLife. (Doc. 35-2, p. 3
(Atchison May 4, 2018 Declaration, ¶ 9)). The summary
judgment record does not contain a copy of any paperwork
plaintiff or his doctor submitted, and his doctor was not
deposed. MetLife denied plaintiff's request for FMLA
leave on November 17, 2014, because it had not received an
updated Health Care Provider Certification. (Doc. 30-1, p.
156 (Ex. 24)).
apparently decided to overlook plaintiff's failure to
return to work by October 22, 2014, as he had been instructed
to do in the October 15 letter, while MetLife was evaluating
plaintiff's appeal and additional claims. Still, when
plaintiff did not return to work after his second claim for
FMLA leave was denied, Verizon sent him a letter on January
28, 2015, stating that his “continued absence from the
workplace is considered unauthorized, unexcused and
attendance impacting.” (Doc. 30-1, p. 157 (Ex. 25)).
Verizon informed plaintiff that, by February 4, 2015, he
should either return to work, with medical documentation
supporting his absence since the end of his leave period, or
provide medical documentation to support his continued need
to remain off work. If he did not comply, he would be placed
on an unauthorized leave of absence, and his employment would
be subject to termination for job abandonment.
receiving the January 28 letter, plaintiff testified that he
either faxed or e-mailed additional paperwork supporting his
need for a leave of absence to both MetLife and Verizon.
(Doc. 30-1, p. 32-34 (Atchison Depo., p. 120-126)). He asked
his doctor to submit additional paperwork to MetLife, and he
also sent additional paperwork to Kathy Williams, who
forwarded it to MetLife. (Doc. 30-1, p. 34-36 (Atchison
Depo., p. 127-134); Doc. 35-2, p.3 (Atchison May 4, 2018
Declaration, ¶¶ 10-12). Williams testified,
however, that she transferred to a different store in
November 2014. She had one conversation with plaintiff about
two weeks later, but after that, she did not assist him with
his leave requests or have any conversations with him about
his leave. (Doc. 30-6, p. 89-91 (Williams Depo., p.
347-354)). In any event, defendant again disputes that either
it or MetLife received any additional paperwork from
plaintiff, Williams, or plaintiff's doctor, and there no
copies of any additional paperwork in the record. Plaintiff
attempted to contact Kerry Gould every day, but Gould never
returned any of his phone calls or texts, instead deferring
to plaintiff's communications with Kathy Williams.
Plaintiff also testified that he left a voice mail for
Michelle Dennis, but she did not return his call. (Doc. 30-1,
p. 36 (Atchison Depo., p. 134)). Plaintiff's cell phone
records show that he called Michelle Dennis once on August
14, 2014, once on August 15, 2014, and once on October 13,
2014, but the records do not show any calls placed after
January 28, 2015. (Doc. 30-5 (Phone Records), p. 35, 45; Doc.
30-3, p. 46 (Dennis Depo., p. 179)). Plaintiff also testified
that he regularly talked to Danielle Gaebele (formerly
Danielle Sauer), the member of Verizon's Absence
Management Team who sent him the January 28 letter, during
this time period. (Doc. 30-1, p. 35-36 (Atchison Depo., p.
131-135)). But his phone records show that he called Gaebele
twice on June 13, 2014, twice on June 25, 2014, once on June
27, 2014, and twice on October 21, 2014. (Doc. 30-5 (Phone
Records), p. 24-25, 46; doc. 30-1, p. 157-160 (Ex. 25-27)).
Other than a February 9, 2015 call discussed below, there are
no further calls to Gaebele's number.
sent plaintiff another letter on February 5, 2015, notifying
him that he had been placed on an unauthorized leave of
absence due to his failure to submit documentation to support
his continued absence from work, or to contact Verizon as
requested to address the issue. Plaintiff was advised that if
he did not either return to work or provide the requested
documentation by February 9, 2015, his employment would be
terminated for job abandonment. (Doc. 30-1, p. 159 (Ex. 26)).
Plaintiff left a voice mail message for Gaebele on February
9, but there is no information in the record about the
content of the voice mail because Gaebele did not document
the message according to office procedure. (Doc. 30-2, p. 9
(Gaebele Depo., p. 29-30)). Gaebele called plaintiff back on
February 10 and left a voice mail, and she made two attempts
to contact him at two different numbers on February 11,
leaving a voice mail at only one number because the mail box
had not been set up at the other number. (Id., p.
34-40). Plaintiff did not return Gaebele's phone calls.
decided to recommend the termination of plaintiff's
employment for job abandonment. As required by office
protocol, she first sought and received the permission of
both her supervisor and the local Human Resources Business
Partner - in this case, Michelle Dennis. (Id., p.
19-22, 95-96). Gaebele then sent plaintiff a letter on
February 13, 2015, stating:
We have made multiple attempts to engage in the interactive
process with you regarding your absence from the workplace.
As of today, you have failed to respond to our attempts to
assist you, you have failed to submit any documentation, and
you have failed to return to work. Therefore, we have
concluded that you have elected to abandon your position of
Solutions Specialist and therefore have been removed from the
Verizon Wireless payroll effective today, February 13, 2015.
(Doc. 30-1, p. 160 (Ex. 27)).
For Claims Under ...