Cowgill v. First Data Technologies, Inc.

• Decision Date: 22 July 2022
• Docket Number: 21-1543
• Citation: 41 F.4th 370
• Parties: Terri COWGILL, Plaintiff - Appellant, v. FIRST DATA TECHNOLOGIES, INC. ; Fiserv Solutions, LLC, Defendant – Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

41 F.4th 370

Terri COWGILL, Plaintiff - Appellant,

v.FIRST DATA TECHNOLOGIES, INC. ; Fiserv Solutions, LLC, Defendant – Appellees.

No. 21-1543

United States Court of Appeals, Fourth Circuit.

Argued: March 10, 2022

Decided: July 22, 2022

Edward Patrick McDermott, Sr., LAW OFFICE OF E. PATRICK MCDERMOTT, Annapolis, Maryland, for Appellant. Charles B. Jellinek, BRYAN CAVE LEIGHTON PAISNER LLP, St. Louis, Missouri, for Appellees.

Before GREGORY, Chief Judge, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Thacker joined. Judge Quattlebaum wrote a separate opinion concurring in part and dissenting in part.

GREGORY, Chief Judge:

This appeal arises from the district court's grant of summary judgment to First Data Technologies, Inc. on former employee Terri Cowgill's failure-to-accommodate and disability discrimination claims, as well as the district court's dismissal of Cowgill's retaliation claim. Because the court erred in holding that there are no genuine issues of material fact precluding summary judgment on the disability discrimination claim, we must vacate its judgment and remand for further proceedings consistent with this opinion.

I.

First Data Technologies, Inc. ("First Data"), a credit and debit card processing company, employed Terri Cowgill ("Cowgill") as a call center representative from 2004 until September 15, 2015. In her role, Cowgill answered calls from customers regarding transaction disputes. Cowgill, like all other call center representatives, was expected to make certain efforts to engage with a customer before disconnecting a call. For example, she was expected to introduce herself, identify the department she was in, and make attempts to say hello to the customer at least three times before terminating the call. Call center representatives were to refrain from engaging in "call avoidance," which refers to a broad category of prohibited behaviors, including, but not limited to, not answering or "opening" a call promptly and releasing a call prematurely. During the nine years that preceded the termination of Cowgill's employment, she "retained a spotless disciplinary record"—except when placed on a 30-day Improvement Action Plan ("IAP") in September 2006—and "[she] routinely received above-average performance reviews." J.A. 294.¹

On January 20, 2015, Cowgill submitted a request pursuant to the Family and Medical Leave Act ("FMLA") as a result of back pain she was experiencing from an automobile accident that occurred 15 days earlier. The written physician's note Cowgill submitted to First Data stated: "reduced work schedule: 4 hour(s) per day; 3-5 days per week" and "1/20/15 to 2/20/15." J.A. 288. First Data approved this request. The approval letter read in part: "Your request for an intermittent leave of absence ... has been approved for the following dates: Leave Start Date—01/15/2015[;] Leave End Date—02/20/2015. The health care provider indicated that you may need time off to care for yourself, within the following parameters: Frequency—4 hours per day, 3-5 days per week." J.A. 291. The letter further explained that "[e]mployees on an intermittent leave of absence": (i) "Must attempt to schedule doctor's appointments during non-work hours"; (ii) "Can be recertified after the leave end date, if the need still exists"; (iii) "Must notify [First Data] if anything regarding this intermittent leave changes or if this intermittent leave is no longer needed"; (iv) "Must follow [ ] business unit's call in procedures"; and (vi) "Must designate [ ] absence[s] as FMLA when calling in." Id. The approval letter also stated that, if Cowgill had any questions, she should contact the Human Resource ("HR") Service Center.

Eight months later, in August 2015, Cowgill recertified her request for FMLA leave. First Data again approved the request. According to the approval letter, the "intermittent leave of absence" began on August 20, 2015 and would end on February 20, 2016, with a frequency of one to two days per month. J.A. 292.

Though First Data approved Cowgill's FMLA requests, Cowgill testified that First Data refused to grant the accommodation she requested:

Q: .... What is the reasonable accommodation that you requested that you contend the company refused to grant?

A: My doctor requested that I be put on a reduced schedule—four hours per day, three to five days per week—while I was going through physical therapy....

Q: Was that request for intermittent leave approved by the company?

A: Yes, sir.

Q: Did you take reduced hours and reduced days off?

A: No.

Q: Why not?

A: Well, let me correct that. I took reduced hours off for my physical therapy, but First Data never reduced my actual schedule to four hours per day three to five days per week....

Q: And given th[e] approval, can you tell me how or why you believe that First Data failed to accommodate this request for a reduced schedule?

A: Because every day, I went in and checked my schedule and it wasn't reduced.

Q: Did you share that with anyone that you were still on the schedule?

A: Dawn Rowe multiple times.²

Q: And what did she say when you shared that with her?

A: ... [S]he told me while my physical therapy was goin' on to just go ahead and whenever I had to leave for physical therapy, to call Workforce Management and they would ... go in and schedule my physical therapy. So she told me I was to call them when I left for physical therapy and then call ‘em when I got back from physical therapy.

Q: .... And was there some other manner in which you think that the company should've accommodated you? I mean, ... if she said, if you can't come in ‘cause you have therapy or you're hurting, don't come in, ... what's the difference whether you're scheduled or not?

A: Because we have schedule compliance. That's part of ... the reviews .... So unless it's put in my schedule, that actually counts against me....

Q: Well, did anyone ever tell you that they were counting your time away at physical therapy or when you said you were hurting and couldn't come in against you? ...

A: No. But if—don't tell me if I called Workforce Management when I left for physical therapy, then it would be noted as FMLA, which, obviously, would be excused.

Q: Okay.... [J]ust so I understand it, your position is that the company didn't grant your request for time away from work on an intermittent basis or ... reduced basis because they actually left you on the schedule?

A: My position is they never actually reduced my schedule, so I can't pick which days and which hours I actually wanna work and just show up for those days and hours.

Q: But they did say if you need to be off because you have physical therapy or because your condition's flaring up, just call Workforce Management and don't come in.

A: No.... Well, what I'm trying to say to you [is that] [b]ecause they did not say, okay. You have Monday, Wednesday, and Fridays off. That's your three days per week. Then I could've scheduled my going to my doctor and said, okay. I need my physical therapy for Monday, Wednesday, and Friday. They never did that.

Q: But to be clear, they said if you needed to go at physical therapy, you should just go. Call Workforce Management and go.

A: .... Correct....

Q: .... So after you'd been approved for this leave, was there ever any day where you had worked four hours per day on the schedule and you said, ... I can't work anymore so I'm gonna go tell Dawn Rowe I've had enough.... I gotta go. Pursuant to my FMLA intermittent leave, I'm telling Workforce Management I gotta go today and ... I'm not working?

A: .... I did leave one day. I just stood up and put on my coat. She was across the room and she come walking towards me and asked me if I was okay. And I said, no. I'm going home.

Q: And what did she say?

A: Nothin'.

Q: Did you call in to Workforce Management, said, I'm taking this time off for FMLA?

A: Yeah. I woulda had to do that and call her extension before I even left, so I'd done that before I even stood and put on my coat....

Q: .... Again, notwithstanding the fact that your schedule had not been changed, if you needed to go to physical therapy or if you were hurting and had to go, ... the company was fine and approved you to take that leave. Correct?

A: I can't say that they were fine. I just called Workforce Management, told them I was leavin', and I got designated as FMLA so it didn't hurt my schedule compliance....

Q: All right.... [D]id you ever tell Ms. Rowe, hey, this is one of those days where I'm flaring up. I need to take off today?

A: I don't recall....

Q: And your physician's note—was you may need to take one to two days off a month. It wasn't required that you be scheduled off one to two days a month. Correct?

A: I believe it said that I could experience flare-ups.

Q: And so the company had approved you for that. When you have a flare-up, let us know and it's approved for intermittent leave?

A: Correct.

Q: Do you recall ever—any instance after that had been approved where you actually had to say, I'm having a flare-up today. I can't come in?

A: I can't recall.

Q: .... So, as you sit here today under oath of this deposition, you can't recall any other time after you'd been approved for that leave in August 20 of 2015 where you requested a time off and nobody didn't give you the time off?

A: Correct....

Q: [A]s you sit here today, you can't recall whether you actually ever needed ... to take a day off?

A: Correct. I don't.

Q: And is it fair to say then that you can't remember any instance where the company ever denied you a day off pursuant to your approved FMLA intermittent leave?

A: The one to two days per month? Correct. I didn't say that.

Q: And other than periodic time off from work under the FMLA, was there ever any other accommodation requests you made of the company?

A: Not that I recall.

J.A. 239–45, 248–54, 256–59, 334. Cowgill also testified to the following:

Q: On any day where you were on the schedule,

...