Parniske v. Mich. Bell Tel. Co.

JAMES PERCY PARNISKE, et al., Plaintiffs, v. MICHIGAN BELL TELEPHONE COMPANY, d/b/a AT&T, Defendant.

Civil Action No. 15-CV-12040

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 27, 2017

HON. MARK A. GOLDSMITH

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Dkt. 59)

This matter is before the Court on Defendant Michigan Bell Telephone Company's motion for summary judgment (Dkt. 59). Plaintiffs are 12 former employees of Michigan Bell who were each tasked with telephonically assisting dissatisfied customers seeking to disconnect services. Plaintiffs claim that they were either constructively discharged or terminated by Michigan Bell in retaliation for taking leave under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., and because of a disability, in violation of Michigan's Persons With Disabilities Civil Rights Act ("PWDCRA"), Mich. Comp. Laws § 37.1101, et seq. Michigan Bell contends that it is entitled to summary judgment because none of the Plaintiffs can establish all of the requisite elements for either claim. For the reasons stated below, the Court grants in part and denies in part Michigan Bell's motion.

I. BACKGROUND

Each Plaintiff was employed by Michigan Bell as either a service representative or consumer product specialist in Michigan Bell's Port Huron call center. First. Am. Compl. ¶ 22 (Dkt. 12). The Port Huron call center was known as a retention center, meaning that its primary goal was to retain customers who had expressed a desire to disconnect services with Michigan Bell. Parniske Dep. Tr. at 42, Ex. 1 to Def. Mot. (Dkt. 59-2). Service representatives and consumer product specialists also dealt with customer complaints and attempted to sell certain services to dissatisfied customers. Id. at 51.

The Port Huron call center had the following chain of command: service representatives and consumer product specialists reported to a first-level coach manager, the coach manager reported to a center sales manager, and the center sales manager reported to a general manager. Armstrong Dep. Tr. at 41, Ex. 2 to Def. Mot. (Dkt. 59-3). The service representatives and consumer product specialists were evaluated based on monthly scorecard results. Parniske Dep. Tr. at 52. These scorecards measured the employee's ability to both retain dissatisfied customers and sell new products to those customers. Id. at 51.

At various points throughout their employment with Michigan Bell, Plaintiffs took leave under the FMLA or took short term disability leave. Linda Armstrong took FMLA leave at various points during her employment for ailments including upper respiratory infections, heart issues, and an ankle injury. Armstrong Dep. Tr. at 92-124. James Parniske took leave multiple times during his employment for a lower back injury, gastrointestinal issues, a wrist injury, and to care for his daughter after she underwent surgery. Parniske Dep. Tr. at 105-115. Kathleen Johns suffered from a chronic sinus condition that forced her to take leave at various points during her employment with Michigan Bell. Johns Dep. Tr. at 123-139, Ex. 3 to Def. Mot. (Dkt. 59-4). Cathy Lynn Nofs sought leave intermittently for anxiety and depression. Nofs Dep. Tr. at 123, Ex. 4 to Def. Mot. (Dkt. 59-5). Kimberly Leslie took leave at various points for ailments including asthma, allergies, and gastrointestinal issues. Leslie Dep. Tr. at 108-115, Ex. 5 to Def. Mot. (Dkt. 59-5). Leslie also took leave to undergo surgery to remove a tumor from her neck.Id. at 122. Lori Shea took leave multiple times during her employment to deal with depression and anxiety. Shea Dep. Tr. at 99-100, Ex. 6 to Def. Mot. (Dkt. 59-6). Kristie Pretty-Kendall took leave to address a neck issue as well as anxiety and depression. Pretty-Kendall Dep. Tr. at 129-130, 143, Ex. 7 to Def. Mot. (Dkt. 59-8). Tracy Easton took leave because of a sinus infection and asthma, as well as for mental health treatment during her employment with Michigan Bell. Easton Dep. Tr. at 67-83, Ex. 8 to Def. Mot. (Dkt. 59-9). Ronald Emerick took leave after the birth of his daughters, as well as for issues relating to stress. Emerick Dep. Tr. at 84-88, Ex. 9 to Def. Mot. (Dkt. 59-10). Kelly Jefferson took leave due to issues with asthma. Jefferson Dep. Tr. at 85, Ex. 10 to Def. Mot. (Dkt. 59-11). Sara Osgood took leave to deal with migraines. Osgood Dep. Tr. at 116, Ex. 11 to Def. Mot. (Dkt. 59-12). Heidi Pojeky took leave primarily to deal with depression. Pojeky Dep. Tr. at 85-95, Ex. 12 to Def. Mot. (Dkt. 59-13).

Armstrong, Parniske, Johns, Nofs, Leslie, and Shea all resigned from their employment with Michigan Bell and are now claiming they were constructively discharged for taking leave under the FMLA and because they had a disability. Although Pretty-Kendall, Easton, Jefferson, and Osgood were technically terminated by Michigan Bell, they now argue that they had effectively resigned prior to their terminations and thus were constructively discharged for using FMLA leave and because they had disabilities.¹ Emerick and Pojeky claim that they were terminated in retaliation for taking leave under the FMLA and because of their disabilities.

Several of Michigan Bell's former management-level employees testified that a policy was instituted by general manager Jason Leiker, and continued by his successor Geoffrey Lee, to target FMLA and short-term disability leave users at the Port Huron center. Sean Brister, a former center sales manager at the center, testified that between 2009 and 2013, Lee told her andothers during management meetings to target FMLA users. Brister Dep. Tr. at 179, Ex. 9 to Pl. Resp. (Dkt 60-10). Brister stated that Lee asked her and the other managers the following: "if you are on an island and you needed to, you know, save someone, who would you save?" Id. Brister explained "that directive was not to save the people on FMLA or disability that were bringing the center down." Id. Brister testified that Lee ordered her and other management employees to target FMLA and disability leave users for removal from the company, regardless of the quantity of leave used. Id. at 181.

Elizabeth Jeup, a coach manager, testified that management meetings would take place quarterly, and that a primary talking point was the targeting of FMLA and disability leave users. Jeup Dep. Tr. at 9-10, Ex. 13 to Pls. Resp. (Dkt. 60-14). Jeup noted that Leiker and Lee were motivated to target FMLA users because management was expected to meet certain metrics regardless of how many representatives were at work, whereas representatives had their scorecards adjusted to reflect days they were out on FMLA leave. Id. at 18.

In reference to employees who took leave, Lee told Jeup and the other managers to "work them out of the business" by scrutinizing their phone calls in order to find errors, such as failing to properly state legal disclaimers to customers and failing to keep phone lines open for the proper amount of time. Id. at 12. Coaches were also instructed to scrutinize the amount of time FMLA and disability leave users were taking for lunch and breaks. Id.

Kelli Ashford-Porter, a center sales manager, also testified that Lee gave a directive to target FMLA users. Ashford-Porter Dep. Tr. at 23-24, Ex. 12 to Pl. Resp. (Dkt. 60-13). Joseph Gouin testified that Lee, center sales manager Pearlanne Pollard, and assistant manager Frank Mayberry would consistently give directives at the quarterly meetings to target FMLA users. Gouin Dep. Tr. at 16, Ex. 21 to Pl. Resp. (Dkt. 60-22). Gouin stated that he was told by Lee thatit was either "them or us," which Gouin understood to mean that, if management did not target users of FMLA or disability leave, the entire call center would be shut down. Id. Parniske testified that there was a board placed in the call center that counted how many people were absent each day. Parniske Dep. Tr. at 157. Several other coach managers testified that they were given a directive by upper-level management to target users of FMLA or disability leave. See Reynolds Dep. Tr. at 188-189, Ex. 14 to Pls. Resp. (Dkt. 60-15); Bawol Dep. Tr. at 185, Ex. 15 to Pls. Resp. (Dkt. 60-16); Howard Dep. Tr. at 82, Ex. 11 to Pls. Resp. (Dkt. 60-12).

Jeup testified that specific names were brought up consistently in management meetings. Jeup testified that Johns, Osgood, Jefferson, Parniske, Pretty-Kendall, Shea, and Nofs were individuals who were referenced in meetings for using FMLA or disability leave. Jeup Dep. Tr. at 23-24. Jeup stated that she remembered Johns, Parniske, and Nofs were mentioned specifically as individuals who were to be targeted for FMLA use. Id. at 23-25. Tracy Turner, a coach manager, also testified that Johns, Osgood, and Jefferson were brought up specifically as individuals to be targeted for FMLA use. Turner Dep. Tr. at 46-48, Ex. 19 to Pl. Resp. (Dkt. 60-20).² In an email dated January 20, 2011, Turner questioned whether Osgood and two others should have been named the winners of a contest for the most retained customers of the day because "[t]hese 3 winner's [sic] all abuse FMLA." 1/20/2011 Email at 2 (cm/ecf page), Exhibit 20 to Pl. Resp. (cm/ecf page) (Dkt. 60-21). Turner testified that she sent this email because of the directive that Lee had given her to target FMLA users. Turner Dep. Tr. at 29-30. Additional facts regarding each individual Plaintiff will be addressed in the analysis section below.

II. STANDARD OF REVIEW

A court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "In making this determination, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." U.S. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court must...