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Atchison v. Cellco Partnership

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

January 30, 2019

CEDRIC ATCHISON, Plaintiff,
v.
CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Defendant.

          MEMORANDUM OPINION AND ORDER

          LILES C. BURKE U.S. DISTRICT JUDGE

         Plaintiff, 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.

         I. STANDARD OF REVIEW

         A 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).

         II. STATEMENT OF FACTS

         Plaintiff, 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)).

         Plaintiff 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).

         Verizon 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)).

         Plaintiff 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)).

         Plaintiff 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)).

         Verizon 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. (Id.).

         After 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.

         Gaebele 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.

         Gaebele 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)).

         III. DISCUSSION A.

         Framework For Claims Under ...


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