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Kilgo v. Cingular Wireless

September 28, 2007

GRETA D. KILGO, PLAINTIFF,
v.
CINGULAR WIRELESS, L.L.C., DEFENDANT.



The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge

Chief Judge Curtis L. Collier

MEMORANDUM

I. BACKGROUND

Before the Court is Cingular Wireless, L.L.C.'s ("Defendant") motion for summary judgment filed on December 15, 2006 (Court File No. 29). Greta D. Kilgo ("Plaintiff") filed a response on January 24, 2007 (Court File No. 34). As Plaintiff has responded to Defendant's motion and all necessary responses have been filed this matter is now ripe for decision.

II. FACTS

Defendant, until recently, employed Plaintiff at Defendant's Johnson City Call Center ("Call Center") located in Johnson City, Tennessee (Court File No. 35 at ¶ 1). The Call Center is a large facility where the operators make or field calls from customers who owe Defendant money. (Id. at ¶¶ 1, 2.) Defendant places great emphasis on minimizing its customers' wait time by ensuring that customer calls are fielded quickly and handled correctly and efficiently. (Id. at ¶ 4.) Plaintiff started working at the Call Center on September 17, 2001 (see Court File No. 29 at 2). Plaintiff had reconstructive surgery replacing her hip in June 2004 and her knee in July 2005 (Court File No. 29, Ex. 2-A at 122). The events at issue occurred primarily between November 2001 and July 2005. Plaintiff apparently no longer works for Defendant. Defendant's motion refers to Defendant as "her former employer" (Court File No. 1 at 1). The conditions of the termination of her employment are not in the record before the Court and so play no part in this decision.

A. Disability Accommodation Requests

Plaintiff alleges Defendant failed to offer reasonable accommodations as required under the Americans with Disabilities Act ("ADA"), 42 U.S.C §§ 12101-12213 (Court File No. 1 at ¶ 3). Plaintiff has severe oseteoarthritis in her hip and knee area (Court File No. 29, Ex. 2-A at 120).*fn1 Plaintiff had difficulty sitting or standing for long periods of time (Court File No. 29, Ex. 2-C at 7). Because of this impairment, Plaintiff made a series of four accommodation requests related to the location of her desk, its proximity to an entrance and bathroom, and her ability to take breaks more frequently.

First, on November 7, 2001 Plaintiff orally requested an accommodation in a meeting with Chris Page and Carla Gass; Carla Gass was Plaintiff's supervisor, the record does not state what Chris Page's job was (Court File No. 29, Ex. 2-A at 146). Mr. Page told Plaintiff Ms. Gass would assist her with getting an accommodation. Id. Eventually, Plaintiff was directed to Mr. Hawkins who told her, unless she had papers from a doctor, Defendant would not grant an accommodation (again, the record does not state what Mr. Hawkins's job was). ( Id. at 146-47.)

Second, Plaintiff therefore presented papers that her gynecologist, Dr. Renee Hollins, filled out in March 2002. See id. at 147, 154; (Court File No. 29, Ex. 2-C at 2-3). Cingular supplied what was, apparently, their standard form for a request for disability. Dr. Hollins indicated Plaintiff was significantly limited in her ability to perform a major life activity as compared to an average person in the general population (Court File No. 29, Ex. 2-C at 2). However, Dr. Hollins also indicated that this disability did not a "substantially" limit Plaintiff in a major life activity. (Id.) Because of this discrepancy Defendant denied Plaintiff's request for an accommodation (Court File No. 29, Ex. 2-A at 154).

Third, Dr. Hollins sent a letter to Defendant dated April 22, 2002, to clarify her opinion (Court File No. 29, Ex. 2-A at 155-56). Dr. Hollins stated that Plaintiff was "significantly limited" in the performance of a major life activity, but Dr. Hollins did not consider this substantial because it had "nothing to do with [Plaintiff's] job description." (Court File No. 29, Ex. 2-A at 156). Dr. Hollins stated she did not understand what Defendant considered a substantial limitation. (Id.)

Fourth, Plaintiff obtained the opinion of Dr. Catherine Tanner (Court File No. 29, Ex. 2-C at 6-8). Dr. Tanner, Plaintiff's primary physician, filled out Defendant's form unambiguously indicating Plaintiff had a substantially limiting disability (Court File No. 29, Ex. 2-A at 158-59). It is not wholly clear when Dr. Tanner rendered this opinion, but the record shows Defendant dispatched this form to Dr. Tanner on December 9, 2002 (Court File No. 29, Ex. 2-C at 6). Dr. Tanner submitted a supplemental form in November 2003 when Plaintiff wanted to take more frequent breaks at work (Court File No. 29, Ex. 2-D at 3-5).

After the submission of the fourth request, Defendant accommodated Plaintiff through the placement of Plaintiff's workstation next to an exit and a bathroom (Court File No. 29, Ex. 2-A at 24, 27). Defendant also accommodated Plaintiff through splitting her break time and permitting her to take more frequent breaks (Court File No. 35 at ¶ 38).

Following Plaintiff's reconstructive surgery, she claims to still experience stiffness and is not completely able to do her job, although her ability to sit has been extended (Court File No. 35 at 12).

B. Harassment of Plaintiff and Alleged Retaliation

Plaintiff alleges Defendant engaged in or permitted prohibited acts of discrimination based on race, disability, and retaliation for the filing of "EEO complaints," as well as a hostile work environment (Court File No. 1 at ¶¶ 3, 5-6).

Plaintiff, in her deposition and responses to interrogatories, lists many different ways her co-workers harassed her. There are too many incidents alleged to summarize all here, but the following is a fair sample: co-workers rejoicing when Defendant moved Plaintiff's desk (Court File 29, Ex. 2-B at 9); co-workers following her to and from lunch, the parking lot, and the restroom (id. at 9, 12-13). Plaintiff receiving a far higher number of calls than her co-workers, preventing her from going into a "not ready" status (id. at 12); the IT staff erasing content and changing the settings of her computer; (id. at 10, 11); Defendant providing differential disciplinary treatment for white co-workers who went into "not-ready" status four to six minutes before quitting time (id. at 11); supervisors erroneously claiming her time sheets were not correct; (id. at 10, 12); security unnecessarily asking for her identification; (id. at 10); co-worker whistling while walking past her desk (Court File No. 29, Ex. 2-A at 407); white male co-workers acting strangely when Plaintiff wore red clothing, (id. at 413); Defendant treating an ...


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