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Richardson v. At&T Mobility Services LLC

United States District Court, D. South Carolina, Charleston Division

June 20, 2016

Kristen Ard Richardson, Plaintiff,
v.
AT&T Mobility Services LLC, Daniel Brechbill, Sedgwick Claims Management Services Inc., Defendants.

          ORDER

          RICHARD M. GORGEL UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Report and Recommendation ("R&R") of United States Magistrate Judge Bristow Marchant, which was made in accordance with 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), and which recommends that the Court grant Defendants' motion for summary judgment. Plaintiff filed written objections to the R&R, and the matter is ripe for review.

         BACKGROUND

         I. Procedural History

         Plaintiff Kristen Ard Richardson ("Plaintiff or "Richardson") filed her initial complaint on May 20, 2014. On September 8, 2014, she filed an amended complaint alleging the following claims: (1) violation of the Americans with Disabilities Act ("ADA") against Defendant AT&T Mobility Services LLC ("AT&T"); (2) breach of contract against AT&T; (3) violation of the Family Medical Leave Act ("FMLA") against Defendants AT&T, Daniel Brechbill ("Brechbill"), and Sedgwick Claims Management Services Inc. ("Sedgwick"); and (4) intentional and negligent interference with contract/employment against Sedgwick.

         On July 31, 2015, Defendants filed a motion for summary judgment, and Plaintiff filed a response in opposition on August 31, 2015. In her response, Plaintiff voluntarily withdrew her claims against Defendant Sedgwick, leaving only her first, second, and third causes of action against Defendants AT&T and Brechbill for consideration.

         On January 7, 2016, Magistrate Judge Marchant issued his R&R outlining the issues and recommending that the Court grant Defendants' motion for summary judgment as to all of Plaintiff s remaining claims. On January 25, 2016, Plaintiff filed written objections to the R&R, objecting only to the Magistrate Judge's recommendation that the Court grant summary judgment on her ADA claim against AT&T. Defendant AT&T responded to Plaintiffs objections on February 11, 2016, asserting that the objections lack merit.

         II. Evidence

         Plaintiff began working for AT&T as a sales representative in 2009. (Pl's. Depo., ECF 39-14 at 2.) Originally, Mark Edens was her manager, but Defendant Brechbill subsequently became her manager. (Id. at 3.) A Regional Labor Agreement, which provided union representation, covered the terms of Plaintiff s employment. (Edens' Depo. Ex. 1, ECF 39-17.) In addition, Plaintiff was subject to attendance and punctuality guidelines, which established a point system for tardies and absences, with the accumulation of 7 points providing grounds for termination. (ECF 39-2.)

         When Plaintiff applied for her position, Edens and an assistant manager interviewed her. (Pl's. Depo., ECF 39-14 at 3.) At some point, Plaintiff told Edens that she had Multiple Sclerosis. (Edens' Depo., ECF 42-2 at 6.) Edens testified that he told Plaintiff "she needed to file FMLA paperwork, " and that "she would be covered ... if something should arise about that." (Id.) According to Edens, he "asked her to do that repeatedly." (Id.) Edens testified that the only information Plaintiff ever gave him about having MS was verbal, and Edens testified that he was required to keep her attendance records as her manager, but that he told her "that she really needed to fill out the FMLA paperwork, " so that when it came to consideration of her absences, administrators could "go back and look at the FMLA, any kind of and say okay, these absences weren't - these were due to illness or whatever." (Id. at 7.) Edens testified, however, that to his knowledge, Plaintiff never filled out the paperwork. (Id.) Edens further testified that AT&T "had a whole department that was dedicated to any kind of things for Disability Act, " and that an employee "would call the disability hotline or whatever it was" and then "file a claim or not a claim but like a request for accommodations." (Id.) Edens then testified that the request "would go up the ladder, and somebody would look at it, and then they would come back and say yes, we'll do this accommodation; or no, we won't do this accommodation, but we'll do this for you." (Id.) Edens testified that he did not recall Plaintiff ever asking for any type of accommodation. (Id. at 11.)

         On November 16, 2009, Edens formally counseled Plaintiff about her unsatisfactory attendance and punctuality because Plaintiff had accumulated two unexcused absences and had been late for work five times. (Id. at 14; ECF 39-15.) Edens testified that Plaintiff had not filled out any paperwork to have these absences excused under the FMLA at that point. (ECF 42-2 at 14.) The counseling memo Plaintiff received included information concerning her FMLA rights and informed her to contact the appropriate leave administrator if any of her absences qualified for FMLA leave. (ECF 39-15 at 2.) The record does not contain evidence to show that Plaintiff filed any paperwork with respect to any of the absences referenced in the November 2009 counseling memo. (See Hallmon Deck, ECF 39-3; Korzekwa Decl., ECF 39-13.) In fact, Plaintiff testified that when Edens was her manager, she was "in remission for a while, " and there were not really any incidents except for "that one time, " (Pl's Dep., ECF 39-14 at 7.) Plaintiff never explained the "one time" she was referring to, but she also never claimed she asked for an accommodation or FMLA leave for any of the absences or tardies referenced in the November 2009 counseling memo. (ECF 39-15.)

         In June of 2011, Defendant Brechbill became the store manager and Plaintiffs supervisor. (ECF 39-8.) Brechbill testified that he did not recall how he learned of Plaintiff s MS but that it was "common knowledge, " and Plaintiff was not trying to keep it hidden. (Brechbill's Dep., ECF 42-1 at 5.) Plaintiff testified that Edens "was more lenient on the attendance policy, " but when Brechbill became the store manager, he was not lenient and told her to contact FMLA when she reported that she was out for illness. (Pl's Dep., ECF 39-14 at 5.)

         While Brechbill was Plaintiffs manager, Plaintiff was given a counseling for attendance on July 23, 2011, a written warning for attendance on August 12, 2011, and a final written warning for attendance on October 24, 2011.[1] (ECF 39-8; ECF 39-3; ECF 39-4; ECF 39-5.) Pursuant to the Labor Agreement attendance guidelines, the final written warning was the last step before termination. (ECF 39-2 at 5.) Also, each of these written warnings advised Plaintiff of her rights under the FMLA, as well as her right to seek "[l]eave as reasonable job accommodation, " and informed her to contact her leave administrator if she wanted to seek or assert a claim for covered leave with regard to any of these absences and tardies. (ECF 39-20; ECF 39-21; ECF 39-2.) Plaintiff testified that AT&T failed to accommodate her for one full day's absence in October, but that she did not attempt to file for FMLA leave for this absence.[2] (ECF 39-14 at 8.) After receiving the final written warning on October 24, 2011, Plaintiff incurred additional points for unexcused tardies such that by December 6, 2011, she had accumulated a total of 10.75 points. (ECF 39-23.)

         From late December 2011 until late February 2012, Plaintiff was out of work on short-term disability leave, which was considered approved FMLA leave. Because Plaintiff was approved for short-term disability benefits, she was paid during this time. (ECF 39-14 at 14.) About a week after Plaintiff returned to work, however, she was terminated based on having accumulated 10.75 attendance points through December 6, 2011. (Id. at 14-15; ECF 39-23.) The evidence of record indicates that of all of the dates for which Plaintiff accumulated points that resulted in her termination notice, Plaintiff only sought protection under the FMLA on one occasion, her absence on October 19, 2011. (ECF 3 9-9 at 3.) Plaintiffs request for FMLA leave on October 19, 2011, was denied, however, because she failed to properly submit the required medical documentation to show that her absence was due to a serious medical condition. (Id.; ECF 39-11 at 51-54.)

         On December 17, 2012, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the South Carolina Human Affairs Commission ("SCHAC"). (ECF 39-14 at 12-13; ECF 39-18). After receiving a right to sue letter, Plaintiff filed this lawsuit.

         STANDARDS OF REVIEW

         I. The Magistrate ...


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