Nagel v. Sykes Enterprises, Inc.
| Decision Date | 25 August 2005 |
| Docket Number | No. A1-04-039.,A1-04-039. |
| Parties | Susan G. NAGEL, individually, and on behalf of others similarly situated, as a class on the Warn claim, Plaintiff, v. SYKES ENTERPRISES, INC., Defendant. |
| Court | U.S. District Court — District of North Dakota |
John J. Gosbee, Mandan, ND, for Plaintiff.
Michael D. Malfitano, Constangy Brooks & Smith LLC, Tampa, FL, John W. Campbell, Shane A. Hanson, Fleck, Mather & Strutz, Ltd., Bismarck, ND, John W. Morrison, Jr., for Defendant.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT FOR DEFENDANT
Before the Court is the Defendant's Motion for Summary Judgment filed on May 31, 2005. The Plaintiff has filed a responsive brief opposing the motion. For the reasons set forth below, the Court grants the motion in part.
The plaintiff, Susan Nagel, is a former employee of Sykes Enterprises ("Sykes") in Bismarck, North Dakota. Sykes provides customer care management solutions for companies involved in technical, financial and communications industries. Sykes' operations are account driven, meaning employees are hired and retained to work on specific accounts. As part of its operations, Sykes maintains a facility in Bismarck, North Dakota. See Declaration of Kenneth Cass, ¶¶ 3-5. Nagel was hired by Sykes in September of 1999 to work as a telephone Customer Support Technician ("CST"). See Complaint, ¶ 12. CST's are responsible for receiving phone calls from the client's customers and providing the callers with customer service. See Declaration of Rene Lafferty, ¶ 6. Nagel was originally assigned to work on Account Abel, but later transferred to Account Baker.1 See Complaint, ¶ 13.
Beginning in early 2001, Nagel's eyesight began to deteriorate. Doctors opined that Nagel's loss of vision was a result of her diabetes. See Deposition of Susan Nagel, p. 108. On April 21, 2001, Nagel reported to Dr. Curt Wischmeier who performed laser surgery on Nagel's left eye. Nagel returned to Dr. Wischmeier on April 13, 2002, at which time he recommended additional retinal surgery. See Deposition of Curt Wischmeier, pp. 7, 14, 16, 23, 27, and 28. Following Dr. Wischmeier's recommendation, Nagel underwent surgery on her right eye.2 See Deposition of Susan Nagel, p. 117. Nagel was able to return to work at Sykes following the surgery. See Declaration of Rene Lafferty, ¶ 13.
When she returned to work, efforts were made by both Nagel and Sykes to compensate for her failing vision. Nagel tried to overcome her vision problems by adjusting the resolution on her monitor, using a hand-held magnifier, wearing bifocals, writing with broad-tip pens, and relying on assistance from co-workers. See Deposition of Susan Nagel, pp. 145-146, 212; Complaint, ¶ 17. In addition, Sykes furnished Nagel with screen guards and screen magnifiers to aid her. See Deposition of Susan Nagel, pp. 462-463. Nagel requested additional help from Sykes in the form of an LCD computer monitor and specific computer software and hardware to assist her,3 but the requests were allegedly denied. See Deposition of Susan Nagel, pp. 216-217. Even with the assistance, Nagel continued to have difficulties reading a computer screen. Id. 214-215. Despite her vision, Nagel was still able to adequately assist customers as evidenced by her positive job reviews throughout this time period. Id. at 215; see Declaration of Rene Lafferty, ¶¶ 14-15.
On or about April 2, 2002, pursuant to the Worker Adjustment Retraining and Notification (WARN) Act, Sykes notified Nagel, along with most of the employees assigned to Account Baker, that she was to be laid off. The notice reads as follows:
As an ongoing process, we are constantly evaluating our financial performance to determine if we are in the best position to meet the needs of our customers, our employees, and our shareholders. Likewise our clients are conducting similar evaluations to determine the best means of servicing their customers and meeting their business objectives. As a result of these evaluations, our clients have informed us that we must make significant reductions in our workforce due to the lack of call volumes and guaranteed forecasts. These reductions will occur at 1721 South Sykes Street, Bismarck, North Dakota, 58504. With this decision, I regret to inform you that your position is scheduled to be eliminated as of June 1, 2002.
Their decision in no way is a reflection on your personal work and accomplishments. Each of you have worked hard to fulfill your professional responsibility, and I thank you.
According to the Federal WARN Act (Public Law 100-379), SYKES is required to provide all regular full and part time employees with sixty (60) days written notice of a permanent layoff. In accordance with the provisions of the Act, you will be compensated through your notice date of June 1, 2002, for what would be normal business hours during this time. Employees must remain actively employed through the completion of the transition efforts in order to be eligible for compensation through June 1, 2002.*
We are in the process of working with the unemployment office to help provide job placement assistance, on-site layoff transition workshops and information about unemployment compensation, just to name a few of the services we hope we can offer during this transition period. However, I understand that many of you will have immediate questions and concerns. Please feel free to contact Bill Peltz (701) 221-0700 or Rene Lafferty (701) 221-0700.
This is a difficult time for everyone involved. We are committed to providing you with the guidance you may need during this transition. In return, we are confident that you will continue to provide the high quality service our customers have come to rely on.
I would like to thank you again for your dedication, hard work and contribution to Sykes over the years
Plaintiff's Ex. SGN-09. The WARN notice was extended on May 3, 2002, via letter. However, Nagel was eventually terminated on July 8, 2002. See Declaration of Rene Lafferty, ¶ 16.
Approximately three weeks later, on July 29, 2002, Nagel was contacted by Sykes to fill a vacancy on a new account — Account Charlie. See Complaint, ¶ 16; Declaration of Rene Lafferty, ¶ 18. Nagel was one of the first employees contacted for the new openings. See Declaration of Rene Lafferty, ¶ 19. She accepted the position.
Upon her return to work, Nagel's vision continued to deteriorate due to her ongoing struggle with diabetes. Ultimately, on December 16, 2002, Nagel lost her vision completely. See Complaint, ¶ 21. Nagel underwent surgery on her left eye on December 19, 2002. Following surgery, Nagel was still unable to see — her right eye remained blind and her left eye needed to be bandaged following surgery. She informed Sykes that she would need six weeks to recover. See Deposition of Susan Nagel, pp. 209, 246, 255, and 256.
According to Nagel, following surgery she made attempts to again secure the computer software being utilized by Jeremy Schmidt, a legally blind employee at Sykes. Initially, on December 20, 2005, Nagel spoke with Cassandra Thompson, the Human Resources Director for Sykes, and requested the computer software. See Deposition of Susan Nagel, p. 247. According to Nagel, Thompson said that she would have to look into securing the software and would attempt to have it set up for her in the near future. Id. at 250-252. Later, on December 27, 2002, Nagel claims that Thompson told her that she would be responsible for purchasing the software and that Sykes could not guarantee her a job even with the software.4 Id. at 245-246. Further, Nagel claims that Thompson insisted Sykes did not want to hire more legally blind individuals because the software was too expensive. Id. at 456-457.
During this same time, Nagel also asked that she be given other opportunities to remain employed. Specifically, Nagel requested the opportunity to "Y-in" junior technicians, or receive "Y-in" training herself. See Deposition of Susan Nagel, pp. 253-255. "Y-in" training, as its called, is the process where a CST receives additional training from a senior CST or a Team Manager who monitors the trainees phone calls. See Declaration of Rene Lafferty, ¶ 9. "Y-in" training is only made available to those CST's who have begun account specific classroom training. Id. ¶¶ 9-10. Nagel believes that she should have been able to take advantage of "Y-in" opportunities as early as December 16, 2005. See Deposition of Susan Nagel, p. 256-257. Alternatively, Nagel said she would be willing to do janitorial work. Id. at 310.
On December 23, 2002, Sykes received a letter from Dr. Charles R. Volk, Nagel's treating physician. In the letter Dr. Volk reported that Declaration of Cassandra Thompson Ex. 3. For that reason, Dr. Volk explained that Nagel is "legally blind" and should be provided with "software and/or devices for her to be able to work." Id.
On or around December 30, 2002, Cassandra Thompson asked Nagel to attend a vocational assessment with a state vocational rehabilitation counselor at the West Central Services Center in Bismarck, North Dakota, with her accompaniment. See Deposition of Susan Nagel, p. 495; Declaration of Cassandra Thompson, ¶ 24. The purpose of the assessment was to identify what accommodations, if any, would best serve Nagel. See Declaration of Cassandra Thompson, ¶ 24. Nagel was reluctant to attend the assessment and would not allow anyone from Sykes to accompany her. Id. ¶ 25. Nagel was under the impression that she would need to quit her job at Sykes in order to attend the assessment, something she was unwilling to do. Id. at 443 and 495. Nagel told Thompson that she would attend only if she could be assured of her job back...
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