Mcintyre-Handy v. West Telemarketing Corp.

• Decision Date: 19 May 2000
• Docket Number: No. 4:99CV100.,4:99CV100.
• Citation: 97 F.Supp.2d 718
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Sonya MCINTYRE-HANDY, Plaintiff, v. WEST TELEMARKETING CORPORATION, Defendant.

97 F.Supp.2d 718

Sonya MCINTYRE-HANDY, Plaintiff, v. WEST TELEMARKETING CORPORATION, Defendant.

No. 4:99CV100.

United States District Court, E.D. Virginia, Newport News Division.

May 19, 2000.

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Sonya McIntyre-Handy, Hampton, VA, plaintiff pro se.

Burt H. Whitt, Scott W. Kezman, Kaufman & Canoles, P.C., Norfolk, VA, Phyllis Pollard, Derek Gilliland, Scott, Douglass & McConnico, LLP, Austin, TX, for defendant.

OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This matter comes before the court on defendant's motion for summary judgment. For the reasons articulated below, the court DENIES defendant's motion for summary judgment based on plaintiff's failure to exhaust administrative remedies, but GRANTS summary judgment in favor of defendant on the merits of plaintiff's claim.

I. Facts and Procedural History

West Telemarketing Corporation ("West") is a nationwide telemarketing company that employs approximately 1850 employees. West's facility in Hampton, Virginia, is an inbound call facility which handles customer service orders for a variety of products and services, many of which are promoted via television infomercial and print advertisements. The company processes orders for over 1200 clients answering between 400,000 and 600,000 phone calls per month. (Pl.Mot. Opp'n Summ.J., Letter of Anaise Schroeder, Director of Human Resources, West TeleServices Hampton, to Sheila Chesson, Norfolk Equal Employment Opportunity Commission 2 (Apr. 2, 1999) [hereinafter Schroeder Letter]).

To ensure that client products and services are accurately described and orders properly taken, West requires its telemarketing representatives to read and follow scripts while processing orders. These scripts are provided to West by its clients, who work with West to choose each script's wording. Clients insist that the scripts be read verbatim. (Vanessa J-Douglas Aff. ¶ 4 [hereinafter J-Douglas Aff.]). To maintain the quality of its services and ensure that its telemarketing representatives are recording orders accurately, West randomly monitors incoming calls as part of its Quality Assurance Program. Telemarketing representatives are aware that they may be monitored and recorded at any time; in fact, employees consent to such monitoring as a condition of employment. (J-Douglas Aff. ¶ 4; Dep. of Sonya McIntyre-Handy at 129-30 & Ex. 8 [hereinafter McIntyre-Handy Dep. ]).

Plaintiff, Sonya McIntyre-Handy, began work with West as a telemarketing representative on October 18, 1998. Before her employment began, plaintiff signed a "Statement of Understanding" acknowledging, inter alia, that incoming calls to her station could be monitored with or without her consent, and that she was responsible for reading West's Policy Manual for Telemarketing Representatives. (Def.Mot.Summ.J., App. A, Attach. 8 to Ex. 4, Statement of Understanding ¶¶ 1-2). During the pendency of plaintiff's employment, West operated four separate line groups: the direct line group, the financial services group, the psychic line group, and the customer service group. (Susan Burns Aff. ¶ 3 [hereinafter Burns Aff.]). Before answering any live calls, plaintiff underwent four days of training. (Burns Aff. ¶ 4). After completing her initial training, plaintiff began work in West's direct line group. (McIntyre-Handy Dep. at 79; J-Douglas Aff. ¶ 6).

The direct line group employs the greatest number of telemarketing representatives who receive calls and place orders for several hundred clients. (Burns Aff. ¶ 3). At least two of these clients—the Creflo Dollar Ministry and the Christian Children's Fund—were religiously-affiliated organizations. Incoming calls randomly reach telemarketing representatives. West can neither control nor predict for which client a telemarketing representative will receive calls. As a result, plaintiff read scripts for these two religiously-affiliated clients when the calls came to her calling station. Plaintiff is an atheist, and considered the calls she answered to conflict with her beliefs because she felt as if she were "selling religion," and furthermore, she objected to having to listen to callers' testimonials. On November 4, 1998, plaintiff submitted a letter to her supervisors notifying them of her discomfort reading scripts for these religiously-affiliated groups. (McIntyre-Handy Dep. at 80-82). Specifically, plaintiff objected to the universal greeting required for all inbound calls, "I am glad you called today for (client / product name)." Plaintiff felt that saying she was glad "subjected her," or involved her personally, in the transaction and in the beliefs of the religiously-affiliated client. (Def.Mot.Summ.J., App. A, Ex. 1-A, Letter of Sonya McIntyre-Handy to Vanessa J-Douglas, Employee Relations/Training Manager for West TeleServices Hampton 1 (Nov. 4, 1998) [hereinafter McIntyre-Handy Letter]).

The following day, November 5, 1998, Vanessa J-Douglas, Employee Relations / Training Manager for West, and Susan Burns, Employment Manager for West, met with plaintiff to address the concerns raised in her letter. (J-Douglas Aff. ¶ 8; Burns Aff. ¶ 5; McIntyre-Handy Dep. at 82-83). In the letter, plaintiff had requested either that she be allowed to alter the script or be transferred to another line group. (McIntyre-Handy Dep. at 81-82; McIntyre-Handy Letter at 2). Although plaintiff's complaints related to only a few of West's hundreds of clients, and although Ms. J-Douglas did not believe that the mere statement "I am glad you called" prefacing a religiously-affiliated client's name created a religious burden, Ms. J-Douglas and Ms. Burns agreed to transfer plaintiff from the direct line group. (J-Douglas Aff. ¶ 8). At the time of plaintiff's request for accommodation, the psychic line group was the only group not fully staffed. (Burns Aff. ¶ 5). As a result, plaintiff was transferred into the psychic line group, thereby receiving a pay increase of $0.75 per hour. (J-Douglas Aff. ¶ 8; Burns Aff. ¶ 3). The psychic line group receives calls for only one client— the Psychic Readers Network. Plaintiff began a three-day training program for that group on November 10, 1998, five days after her meeting with her supervisors.

All new employees are considered to be on probation during the first three months of their employment. (Def.Mot.Summ.J., App. A, Attach. 9 to Ex. 4, West's Policy Manual for Telemarketing Representatives at 34 [hereinafter West's Policy Manual]). The purpose of the probationary period "is to give both the employee and the Company an opportunity to determine their interest and suitability for continued employment." (West's Policy Manual at 34). During this period, the employee's performance, behavior, and attendance are carefully monitored. At any time during the three-month probationary period, employment may be terminated for any non-discriminatory reason without prior warning or consultation. (West's Policy Manual at 34). Since plaintiff began work on October 18, 1998, the term of her probationary employment was not due to expire until January 18, 1999.

On or around January 6, 1999, while plaintiff was still in the probationary stage of her employment, West monitored several telephone calls at plaintiff's station as part of its Quality Assurance Program. (J-Douglas Aff. ¶ 9). Plaintiff was recorded being rude to a caller, failing to read the entire script for the psychic line group, speaking negatively about one of West's clients, giving her own advice to callers, and failing to read "legally required" scripted material. (J-Douglas Aff. ¶ 9). Each of the recorded incidents was a violation of the express terms of West's Policy Manual, although the appropriate disciplinary action for each ranged in severity. After the violations occurred, each separate infraction was recorded in separate performance improvement notices. (J-Douglas Aff. ¶ 4). West's standard policy procedure requires Human Resources personnel to review every performance improvement notice that could result in an employee's termination. Since rudeness to a caller and speaking negatively about a client are grounds for immediate dismissal, (West's Policy Manual at 14-15), the violations were reviewed by plaintiff's supervisor, Laura Richter, and by Ms. J-Douglas.¹ Ms. J-Douglas reviewed not only the reports of the violations, but also listened to the taped recordings of plaintiff's conversations at issue. (Schroeder Letter at 2). Afterward, Ms. J-Douglas approved plaintiff's termination, effective January 14, 1999. All of plaintiff's violations were incorporated into a single performance improvement notice, which was given to plaintiff to sign. (J-Douglas Aff. ¶ 10).

Following the termination, plaintiff filed a complaint with the Equal Employment Opportunities Commission ("EEOC")² and received a right-to-sue letter. Plaintiff, proceeding pro se, timely filed a complaint pursuant to 42 U.S.C. § 2000e-2 (1994) ("Title VII").³ The only active claim before this court alleges religious discrimination in violation of Title VII.⁴ Plaintiff claims that (1) she was treated differently than other employees on the basis of her religion; and (2) defendant more reasonably should have accommodated her religious beliefs. Defendant filed a motion for summary judgment on March 8, 2000, with the appropriate notice and instructions for pro se litigants. Plaintiff responded to the motion on March 15, 2000. The parties came before the court for oral argument on April 4, 2000, at which time the court took the matter under advisement. The matter is now ripe for review.

II. Exhaustion of Administrative Remedies

Defendant argues, pursuant to 42 U.S.C. § 2000e-5(c), that this court lacks jurisdiction over the case at bar because plaintiff failed to exhaust her state remedies before filing her complaint in federal court. Specifically, defendant contends that although plaintiff filed a claim with the EEOC, she...