Mauro v. Infocision, Inc.

SANDY MAURO, Plaintiff, v. INFOCISION, INC., Defendant.

Civ. Action No. 1:19-CV-6

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CLARKSBURG

September 21, 2020

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT INFOCISION, INC.'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 27]

Pending before the Court is Defendant Infocision, Inc.'s Motion for Summary Judgment (ECF No. 27). For the reasons discussed herein, the Court grants the motion.

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff, Sandy Mauro ("Plaintiff"), filed suit against Defendant, Infocision, Inc. ("Defendant"), in the Circuit Court of Harrison County, West Virginia, alleging the following causes of action: Age Discrimination in Violation of the West Virginia Human Rights Act (Count One) and Tort of Outrage (Count Two). ECF No. 1-2. On January 10, 2019, Defendant filed a Notice of Removal to this Court. ECF No. 1. On January 17, 2019, Defendant filed a Motion to Dismiss Count II of the Complaint. ECF No. 3. That motion was granted. ECF No. 22. Thereafter, on October 21, 2019, Defendant timely filed its Motion for Summary Judgment. ECF No. 27. Plaintiff filed her response in opposition on November 11, 2019, ECF No. 29, while Defendant submitted its reply on November 25, 2019. ECF No. 31. The Court entertained oral argument on the pending motion on January 24, 2020. The matter is now ripe for decision.

II. FACTUAL BACKGROUND

Plaintiff commenced employment with Defendant on November 21, 2005 as a Communicator. (Pl. Dep. Tr., ECF No. 28-3, at 15-16). That position is best described as an entry-level position within Defendant's call centers where Communicators make and receive telephone calls on behalf of Defendant's clients. (Id. at 28-29, 35-37). At the time of her hire, Plaintiff was 48 years of age. (Id. at 10, 29).

Shortly after hire, Plaintiff was promoted to a salaried, non-exempt Call Center Trainer position. (Id. at 16-17). She worked in that position until her termination on August 15, 2018. (Id. at 18-21, 23-24). In that training role, Plaintiff was charged with training new Communicator hires, monitoring their calls, coaching and otherwise providing feedback. (Id. at 17, 23; Adamescu Dep. Tr., ECF No. 28-4, at 57-71). She was also required to make or receive calls as a Communicator if demand required. (Pl. Dep. Tr. at 36-37).

In late 2017, Defendant undertook a corporate-wide restructuring of all call center operations to address lowretention rates.¹ (Adamescu Dep. Tr. at 73-76). Prior to the restructuring, Plaintiff's work location - Clarksburg, West Virginia - had two Call Center trainers: Plaintiff, age 60, and Margie Fultineer, age 40. (Adamescu Dep. Tr. at 81-82; Pl. Dep. Tr. at 65-66, 10, 100-101; Adamescu Decl., ECF No. 28-2, at ¶10). Call centers were given the option of adding a new role, Learning and Engagement Supervisor ("LES"), which was designed to review the new hire onboarding process to improve employee retention rates. (Adamescu Dep. Tr. at 78-80, 89-91).

Plaintiff sought the Clarksburg LES position but was not selected. (Id. at 88). Carrie Noll, age 41, was promoted to the Clarksburg LES position. (Id. at 88; Adamescu Decl. at ¶8). Noll had worked in Human Resources. Plaintiff retained her same position with the same pay and benefits.² (Pl. Dep. Tr. at 66-67). Plaintiff did have reduced responsibilities for in-class training yet, again, retained the same rate of pay. Ms. Fultineer, Plaintiff's peer as a Call Center Trainer, was demoted from CallCenter Trainer to Communicator. (Id.). Fultineer is younger than Noll.

Around July 2018, following Noll's selection for the LES position, Defendant asked Plaintiff to assist with its Secret Shopper program. (Id. at 26, 90). This program involved an employee of Defendant calling Communicators posing as an outside caller to assess the Communicator's performance. (Id. at 84-85; Adamescu Dep. Tr. at 101-104). Secret Shopper calls are made elsewhere than the call center space used by Communicators. (Pl. Dep. Tr. at 92-93; Adamescu Dep. Tr. at 137-138). At the conclusion of the call, the Secret Shopper reveals the "ruse" and offers a critique of the Communicator's performance. (Pl. Dep. Tr. at 84-85; Adamescu Dep. Tr. at 101-104). A written evaluation is also completed. (Id.). This program is a specialized and unique one Defendant offers its clients to improve quality including results being reported to clients. (Adamescu Dep. Tr. at 116-122). Because of this, Secret Shopper employees are required to account for their time spent in a Secret Shopper role separately from other work. (Id.). The Secret Shopper work time is coded differently in Defendant's computer system. (Id. at 93).

On August 8, 2018, Plaintiff advised her manager Ms. Alastanos she needed to use five (5) hours of vacation to attend an appointment but she would work three (3) hours that day to round out her work day. (Pl. Dep. Tr. at 80-84; Adamescu Dep. Tr. at108-110). Time cards were due that same day so Ms. Alastanos recorded the time as requested by Plaintiff. (Adamescu Dep. Tr. at 108-110). Plaintiff emailed Ms. Alastanos that she would be making Secret Shopper calls from home. (Pl. Dep. Tr. at 81-84 and Ex. J thereto).

Ms. Alastanos was confused as to whether Plaintiff actually worked on August 8, 2018 so the following day she exchanged emails with Plaintiff to ascertain whether she worked from home the evening in question. (Pl. Dep. Tr. at 81-84 and Ex. J thereto; Adamescu Dep. Tr. at 108-110, 112-113, 129-130). Plaintiff stated she did in fact work from home that evening but told Ms. Alastanos to "just put in [sic] down as vacation time that will be fine." (Pl. Dep. Tr. at 81-84 and Ex. J thereto). Prompted by her confusion, Ms. Alastanos contacted Presentation Skills Trainer Training Coordinator Michelle Baum who oversaw Defendant's Secret Shopper program. (Adamescu Dec. ¶3; Adamescu Dep. Tr. at 107, 109-110, 113-114, 129-131 and Ex. 2 thereto). Ms. Baum has the ability to research Defendant's databases tracking Secret Shopper work including the number of calls an employee makes, the length of those calls and the records related to those calls. (Adamescu Dep. Tr. at 109-112, 131-132). Ms. Baum reviewed Defendant's Secret Shopper records for August 8, 2018 and found Plaintiff had made only one call lasting 15 minutes. (Id.). Considering that and Plaintiff's claim she had worked three hours, Ms. Alastanoscontacted Jill Adamescu, Defendant's Corporate Human Resources Manager, to raise concerns about Plaintiff "stealing company time." (Id. at 112-113 and Ex. 6 thereto).

Ms. Adamescu, consistent with her job responsibilities, commenced an investigation of Plaintiff's time worked and call records from July 24, 2018 through August 10, 2018. (Adamescu Dec. ¶¶3-6 and Exs. P, Q and R thereto; Adamescu Dep. Tr. at 104, 111-115, 129-176 and Exs. 4, 5, 6, 7 and 8 thereto). This investigation involved communicating with Ms. Alastanos, Ms. Baum and Deloris DeHart, Defendant's Director of New Employee Training, as well as a review of company database records to ascertain the time Plaintiff spent working. (Adamescu Dec. ¶¶ 3-6 and Exs. P, Q and R thereto; Adamescu Dep. Tr. at 112-115, 129-176 and Exs. 4, 5, 6 and 7 thereto). Ms. Adamescu used Defendant's records to compare the time Plaintiff had recorded as a Secret Shopper with the number of calls she made, the length of those calls and the documentation generated from those calls. (Id.).

The investigation revealed lengthy periods of time when no work was performed while Plaintiff logged time in Defendant's Secret Shopper program between July 24, 2018 and August 10, 2018. (Adamescu Dec. at ¶¶3-7 and Exs. P, Q and R thereto; Adamescu Dep. Tr. at 155-157 and Exs. 4, 5, 6 and 7 thereto). Ms. Adamescu discovered that, on each day her investigation covered, Plaintiff, while making some calls, recorded periods of time worked where shedid not perform Secret Shopper work. (Adamescu Dec. at ¶¶3-7 and Exs. P, Q and R thereto; Adamescu Dep. Tr. at 129-176 and Exs. 4, 5, 6, 7 and 8 thereto). Ms. Adamescu learned a "typical employee" should be able to "easily" make and complete ten (10) Secret Shopper calls per day including the required quality audit paperwork. (Adamescu Dec. ¶¶3-7 and Ex. P thereto; Adamescu Dep. Tr. Ex. 4, 5, 6 and 7). Plaintiff did not hit this mark once during the 13-day period being investigated. (Id.)

On August 13, 2018, Ms. Adamescu and Ms. Alastanos spoke with Plaintiff by telephone. (Pl. Dep. Tr. at 87-91, 94-97 and Ex. 6 thereto; Adamescu Dep. Tr. at 140-145, 159). They discussed the current findings of the investigation and Ms. Adamescu raised concerns about Plaintiff's hours logged as a Secret Shopper. (Id.). Plaintiff advised she was aware of how to properly code her time as a Secret Shopper but could not account for the discrepancy between her hours logged working as a Secret Shopper and the records of her call activity. (Pl. Dep. Tr. at 87-91, 94-97, 107 and Ex. 6 thereto; Adamescu Dep. Tr. at 140-145, 159). She stated her recorded hours were accurate and offered no explanation as to her low productivity. (Id.)

After this call, Ms. Adamescu continued her investigation in an effort to discern a legitimate reason for Plaintiff's poor productivity compared to hours recorded as worked. (Adamescu Dep. Tr. at 160-163). She also consulted with her supervisor, Ms.Wilson, to explore any possible alternative reason for Plaintiff's lack of production. (Id. at 11, 157-158, 180-182). Finding none, Defendant decided to terminate Plaintiff's employment. (Pl. Dep. Tr. at 126-127 and Ex. O thereto at p. 33; Adamescu Dec. ¶¶1, 7; Adamescu Dep. Tr. at 177 and Ex. 2 thereto). Ms. Adamescu, age 55, and Ms. Wilson, age 43, made the adverse employment decision. (Adamescu Dec. ¶1, 7; Adamescu Dep. Tr. at 177). Ms. Adamescu communicated that decision to Plaintiff on August 15, 2018 via telephone. (Pl. Dep. Tr. at 99-100, 106, 126-127 and Exhibit O thereto at p. 33; ...