Hall v. Ohio Bell Tel. Co.
| Decision Date | 31 July 2012 |
| Docket Number | CASE NO. 1:11 CV 1219 |
| Parties | Stella Hall, Plaintiff, v. The Ohio Bell Telephone Co., Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
Memorandum of Opinion and Order
This matter is before the Court upon Defendant The Ohio Bell Telephone Company's Motion for Summary Judgment (Doc. 13). This is an FMLA case. For the reasons that follow, the motion is GRANTED.
Plaintiff, Stella Hall, brings this action against defendant, The Ohio Bell Telephone Company, alleging wrongdoing in connection with plaintiff's termination from employment on November 9, 2010.
Plaintiff began working for defendant in 2001 as a customer service representative at theCleveland Call Center ("Call Center"). Plaintiff's employment is governed by a collective bargaining agreement. Pursuant to the collective bargaining agreement, defendant pays employees for FMLA time.
On August 28, 2007, plaintiff began crying and hyperventilating at work due to "personal/family" issues. As a result, plaintiff was logged out of work for 30 minutes. On September 10, 2007, plaintiff sought the help of a psychiatric social worker through defendant's employee assistance program. The social worker determined that plaintiff suffered from an anxiety disorder and recommended a disability leave. Plaintiff's symptoms included difficulty focusing and concentrating, as well as difficulty talking for long periods of time. Plaintiff's social worker approved 80 hours per month of leave time pursuant to the Family and Medical Leave Act ("FMLA"). According to the social worker, the purpose of the leave time was to "relax, regroup, take[] care of her own needs and reduce the stress in her life." It appears that defendant reviewed the medical records and approved disability leaves from September 15, 2007 through October 2, 2007, and again from October 2, 2007 through November 8, 2007. During the time plaintiff was on disability or FMLA leave1 , she would pray, go to the gym, surf the internet, write, and talk to her sister.
In addition to working for defendant, plaintiff wrote novels. Plaintiff publishes her novels through her own company, BlacPanther. Plaintiff began working on her novels before taking any FMLA leave. Plaintiff admits that while on FMLA leave, she spent some timeworking on a novel. In addition, in 2007, shortly after plaintiff began to take FMLA leaves, plaintiff marketed her novels through various media. On October 11, 2007, the Cleveland Call & Post published an article about plaintiff entitled, "STELLA, the hardest working author in Cleveland." According to the article, plaintiff indicated,
In November of 2007, Kimberly Miceli received a copy of the Call & Post article. Miceli is the Attendance and Force Manager at the Call Center. Miceli is trained to look for "red flags" that suggest possible FMLA abuse. Miceli is responsible for reporting suspected FMLA abuse to the Asset Protection Department ("APD"). The APD investigates the alleged abuse. Upon reading this article, Miceli reported the potential FMLA abuse to the APD. It appears that plaintiff was on disability leave at the time. As a result, the article was forwarded to the disability case manager, but no investigation ensued.
In 2008, plaintiff exhausted all 480 hours of FMLA leave by September 8th.2 According to defendant, plaintiff was able to work for the remainder of the year. Thereafter, in January of 2009, plaintiff again began using FMLA leave. By August of 2009, plaintiff used 472 of 480 hours of leave. Miceli noticed plaintiff's pattern of using all of her FMLA leave during the first three-quarters of the year and then working for the remainder of the year. In 2009, Miceli reported her concerns to the APD, which initiated an investigation. Plaintiff acknowledged thatshe saw a white truck outside her house and assumed that the truck was being used to investigate her for potential FMLA fraud. It appears that the investigation revealed no wrongdoing.
In January of 2010, plaintiff commenced FMLA leave and used 80 hours in each of January, February, and March. Plaintiff requested FMLA for every Monday during the beginning of 2010. An attendance report run on July 29, 2010, shows that as of this date plaintiff exhausted all but 9.75 hours of FMLA leave for 2010.
In 2010, Miceli discovered a hotel confirmation in the name of plaintiff's friend on a printer. Plaintiff's friend was also under suspicion for FMLA abuse. The confirmation was for four individuals. Miceli suspected that plaintiff and her friend were going to use FMLA time for the trip. Miceli alerted APD, who was prepared to observe plaintiff on the trip. Plaintiff, however, did not request FMLA leave for this time period. Miceli later requested that defendant order plaintiff to undergo an independent medical examination ("IME"). Defendant informed Miceli that IMEs are not undertaken to confirm eligibility for FMLA leave.
Throughout the years, plaintiff provided defendant with certifications from the social worker from whom she received counseling. Although there were some breaks in treatment, plaintiff saw the social worker for counseling throughout the years during which she requested FMLA leave. There were times, however, when plaintiff requested FMLA leave even though she did not receive counseling.
In 2008, defendant suspended plaintiff for two days for "Misuse of Company Time," for spending 52 minutes on a call without a customer on the line. Thereafter, on September 23, 2009, defendant placed plaintiff on a performance improvement plan due to poor performanceand lost revenue numbers. On October 15, 2009, plaintiff received a "restate" of a first written warning as a result of plaintiff's "continued lack of consistency in [her] overall performance."
On January 10, 2010, plaintiff began reporting to Shaun Smith. According to plaintiff, Smith "nitpicked" her performance. Smith regularly held team meetings and made several comments about "patterns of attendance." Plaintiff claims that the comments were directed at her, as most of the team members were not eligible for FMLA time and defendant had a plan in place to address unexcused absences. According to plaintiff, Smith informed her that if she "continue[s] to show a pattern we will do something about it and if I seem to be picking on you, my mother died and I came to work the next day." At the end of February 2010, plaintiff called Lee Jones in human resources and reported that Smith's behavior constituted harassment. Jones contacted McCarter, Smith's supervisor and the sales manager. McCarter discussed the comments with Smith and told him he needed to work on his style. It does not appear that any supervisor discussed alleged FMLA harassment and Smith was not disciplined.
On May 4, 2010, Smith held a "coaching" meeting with plaintiff. During the meeting, plaintiff demanded that a union steward be present. Smith denied plaintiff's request on the grounds that the meeting was not disciplinary in nature. The following day, Smith held a meeting with plaintiff and McCarter. Two union representatives were present at the meeting. Smith agreed that a union representative could be present at all future meetings. Plaintiff requested a transfer to a different team and McCarter granted the request.
On July 1, 2010, defendant transferred plaintiff to Tiffany Ferrell's sales team. Plaintiff continued to have performance issues. On July 23, 2010, plaintiff received a first written warning due to a continued lack in overall performance. Plaintiff believed that Ferrell also was"nitpicky," On September 16, 2010, defendant placed plaintiff on final written warning. The letter cautioned that any further "chargeable absences" could result in termination.
On August 30, 2010, plaintiff informed Miceli that her "grandchild" had died. Plaintiff provided Miceli with a letter from the funeral home indicating that the funeral home was "entrusted with the arrangements of Aria, the grandchild of [plaintiff]." The collective bargaining agreement affords employees with bereavement leave for the death of grandchildren. It does not, however, afford bereavement leave for the death of a step-grandchild. At the time of the death, plaintiff was 41 years old. According to plaintiff, defendant should have known that it was highly unlikely that plaintiff was requesting leave for the death of a biological grandchild.
Domain Ebony Hall ("Ebony") is the daughter of plaintiff's husband. Aria was Ebony's daughter, who died of cancer on August 26, 2010. Ebony occasionally stayed with plaintiff and her husband while growing up. Ebony stopped coming to plaintiff's home around age 14 or 15. Plaintiff testified that she does not know Ebony's address or telephone number, but she occasionally speaks to Ebony through plaintiff's son. Plaintiff does not know the name of Ebony's youngest child. In discussing the situation with her social worker, plaintiff referred to Aria as "her husband's daughter's eight-year-old daughter." At Ebony's request, plaintiff was not listed as a grandparent in Aria's obituary. It is unclear where this obituary was published.
Plaintiff was on vacation when she learned through Facebook that Aria died. Ferrell offered to post information about the services on defendant's notification board, but plaintiff refused. Ferrell then attempted to obtain information about the funeral services. She received the following text from plaintiff, "2nite @ 8 pm 3 lutheran and putius nean @ not 3." Ferrell,however, did not text or call plaintiff in response to the message. Ferrell became suspicious and telephoned the funeral home that...
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