Vonderhaar v. Waymire

KRISTINA VONDERHAAR, Plaintiff-Appellant, v. AMY WAYMIRE and AT&T MOBILITY SERVICES, LLC, Defendant-Appellees.

No. 19-5332

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

January 15, 2020

NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0021n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

OPINION

BEFORE: MOORE, CLAY, and SUTTON, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Kristina Vonderhaar accuses her erstwhile employer, AT&T Mobility Services, LLC ("AT&T"), of violating the Family and Medical Leave Act ("FMLA") and Kentucky wrongful-discharge law. Most significantly, Vonderhaar alleges that, after she used a significant amount of her medical leave, and then complained to AT&T's "ethics hotline" about "fraudulent" activity occurring at the AT&T store where she worked, her supervisors retaliated against her by making her working conditions so miserable that she had no choice but to resign. The district court, however, granted AT&T summary judgment, finding that Vonderhaar's claims lacked evidentiary support or were otherwise improperly asserted. Vonderhaar now appeals that judgment. We AFFIRM.

I. BACKGROUND¹

A. Factual Background

1. September 15, 2013 to April 16, 2015: Vonderhaar Uses Her Medical Leave and Experiences Other Attendance Issues

On September 15, 2013, Vonderhaar began working as a "retail sales consultant" at an AT&T store in Maysville, Kentucky. Nothing of note occurred during Vonderhaar's first year of employment. In November 2014, however, Vonderhaar underwent a partial hysterectomy surgery, followed by a few related surgeries in the weeks thereafter. As a result of these surgeries, Vonderhaar requested, and AT&T approved, an FMLA leave of absence lasting from November 24, 2014 to February 2, 2015. R.36-6 (Villarreal Dec. ¶ 13) (Page ID #358). Unfortunately, shortly after returning from this leave of absence, Vonderhaar experienced heart palpitations. As a result, Vonderhaar requested, and AT&T again approved, a series of "intermittent" FMLA absences, ranging from February 19, 2015 to April 16, 2015. Id. ¶ 15.

Importantly, though, in addition to taking this (approved) time off for medical leave, Vonderhaar missed at least the following six days of work, without requesting FMLA leave: (1) November 15, 2014; (2) November 21, 2014; (3) February 4, 2015; (4) February 11, 2015; (5) March 21, 2015; and (6) April 2, 2015. See R.38-10 (Vonderhaar Attendance Records) (Page ID #687-90); R.36-2 (Vonderhaar FMLA Request Forms) (Page ID #285-301). As these absences occurred, and in accordance with AT&T's progressive disciplinary policy, Vonderhaar received a series of letters warning her that, if she continued to accrue unexcused absences, she "could" besubject to "further discipline, up to and including dismissal." R.38-6 (Feb. 16, 2015 Counseling Notice) (Page ID #546); accord, e.g., R.38-9 (Mar. 6, 2015 Written Warning) (Page ID #682); R.36-4 (Apr. 16, 2015 Final Written Warning) (Page ID #343-44).

The most prominent of these letters was the April 16, 2015 "final written warning." This letter listed the six unexcused absences noted above and essentially said that Vonderhaar could be fired if she missed one more day of work without excuse (because company policy authorized termination after seven unexcused absences). R.36-4 (Apr. 16, 2015 Final Written Warning) (Page ID #343-44); see also R.36-5 (Hoskins Dec., Ex. 1) (Attendance Policy) (Page ID #354). There is no record evidence suggesting this final warning was factually inaccurate, or was applied in a manner inconsistent with AT&T policy.²

2. February 2, 2015 to April 16, 2015: During the Same Time Period, Vonderhaar Sees Her Co-Workers Committing Allegedly Fraudulent Acts, and Then Reports (some of) that Misconduct to Management

Attendance, however, was not the only issue on Vonderhaar's mind after she returned from her leave of absence. Rather, as Vonderhaar tells it, during this same time period—early to mid-2015—she repeatedly caught her colleagues engaging in "fraudulent behavior." At her deposition, she emphasized the following three incidents.

The Shane Hampton "Temporary Phone Number" Incident: Vonderhaar first testified that, sometime in February 2015, one of her colleagues, Shane Hampton, began unnecessarily adding temporary phone numbers to customer accounts. More specifically, Vonderhaar alleged, Hampton gave customers "temporary numbers" when they transferred an existing phone line to AT&T, instead of the new permanent number he should have been giving them. R.38-5 (Vonderhaar Dep. at 62-63) (Page ID #478). As a result, to secure their permanent number, customers were forced to interact with AT&T a second time, which then artificially boosted the sales commissions of employees like Hampton (because the employee could count both the temporary number and the permanent number as a sale). Although Vonderhaar acknowledges that nobody at AT&T requested that she engage in this "temporary phone number" tactic, id. at 67-68 (Page ID #479), because Vonderhaar (correctly) believed the tactic violated company policy, she raised the issue with one of her store managers, Hannah Eaves. Eaves then "sat [the store employees] down . . . and said, you know, no more temporary phone numbers." Id. at 67 (Page ID #479). The record does not indicate whether employees continued to use the "temporary phone number" tactic after Eaves's sit-down.

The Insurance Incident: Vonderhaar also testified that her colleagues would "add[] insurance to [customer] accounts" without informing the customer they were doing so. Id. at 80-81 (Page ID #482). Although Vonderhaar was not "pushed" to take this action either, she (with good reason) thought her colleagues' actions to be unethical. Id. at 83-84 (Page ID #483). Unlike the temporary phone number incident, though, Vonderhaar did not report her specific concernsabout this issue to management. See id. at 83 (Page ID #483) ("Q: Okay. Did you tell [your managers] something specific about this insurance thing being added to the customer accounts? A: I just told them that I knew that fraud was still being committed on the accounts. They never asked me to go into detail.").

The Jamie Davis "Promotional Tablet" Incident: Finally, Vonderhaar testified, on April 7, 2015, she learned that another one of her colleagues, Jamie Davis, had "sold" a free promotional tablet to a customer to whom Vonderhaar had already sold such a tablet. Id. at 69-73 (Page ID #479-80). This "double sale" occurred because an unknown person at AT&T cancelled the customer's original tablet order (the one made by Vonderhaar), which then prompted the customer to call the AT&T store to inquire into her tablet's status.³ When Davis answered the confused customer's call, she decided the best course of action was to sell a "second" promotional tablet to the customer over the phone, with a tablet already in stock. When the customer visited the store the next day to pick up her tablet, however, Vonderhaar realized that Davis had signed a new two-year tablet service contract on behalf of the customer (because the customer had spoken to Davis over the phone), in violation of the company's policy that these kinds of contracts need to be consummated in person. See R.38-13 (AT&T Davis Investigation) (Page ID #719-34). Although Vonderhaar again concedes that nobody at AT&T requested that she sign contracts on behalf of customers, R.38-5 (Vonderhaar Dep. at 79) (Page ID #482), Vonderhaar nonetheless felt that her colleague's behavior was so fraudulent that it warranted not only a report to Eaves—the store manager—but also an anonymous complaint to AT&T "ethics hotline," which Vonderhaar calledthe next day, April 8, 2015. R.38-5 (Vonderhaar Dep. at 73-78) (Page ID #480-82); R.38-13 (AT&T Davis Investigation) (Page ID #725).⁴

3. April 17, 2015 to May 28, 2015: After Meeting with Her Supervisors, Vonderhaar Allegedly Is Forced to Take a Month-Long FMLA Leave of Absence

One day after the final attendance warning, and two weeks after the Jamie Davis hotline call, on April 17, 2015, AT&T's regional retail manager, Amy Waymire, and Vonderhaar's store managers, Fred Hoskins and Hannah Eaves, met with Vonderhaar.⁵

According to Waymire, the purpose of the meeting was not to discipline Vonderhaar, but, rather, to see what the company could do to help its struggling employee. R.38-14 (Waymire Dep. at 5-6, 136) (Page ID #736, 768). More specifically, Waymire was concerned about Vonderhaar's string of unexcused absences, and about two mid-March incidents where Vonderhaar used profanity with her colleagues, all of which Waymire described as "not typical of what we had seen from [Vonderhaar] before." Id. at 5-8 (Page ID #736). As Waymire remembers it, Vonderhaar began the meeting in a "defensive" posture. However, Waymire insists, as the meeting unfolded, Vonderhaar affirmatively opened up about "the specifics of things on an outside basis that weren't involving the store that were affecting her." Id. at 135-36 (Page ID #768). Most notably,Vonderhaar purportedly explained that, since undergoing the November surgery, she had not been "feeling like she [was] truly healed to be back at work." Id. This revelation, in turn, prompted Waymire to encourage Vonderhaar to talk to her doctor about using more FMLA time. Waymire also purportedly informed Vonderhaar that short-term disability payments could cover most of Vonderhaar's paycheck while she was out. Id. at 136-38 (Page ID #768-69). After the meeting concluded, Waymire recalled, Vonderhaar simply "went and contacted her doctor and worked with [HR] and took some [FMLA] time off." Id. at 139 (Page ID #769).

Vonderhaar tells a dramatically different story. In Vonderhaar's recollection, Waymire began the meeting by telling Vonderhaar she had to take a leave of absence, whether unpaid or through a combination of FMLA and short-term disability. R.38-5 (Vonderhaar Dep. at 100-01) (Page ID #487). If...