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Easter v. Asurion Ins. Servs., Inc.

United States District Court, M.D. Tennessee, Nashville Division

March 6, 2015


Page 790

For Jennifer Easter, Plaintiff: Delain L. Deatherage, LEAD ATTORNEY, Law Office of Delain L. Deatherage, Nashville, TN; Anne H. Williams, The Higgins Firm, PLLC, Nashville, TN.

For Asurion Insurance Services, Inc., Defendant: Casey M. Parker, LEAD ATTORNEY, Kathryn Ostrander, Mark A. Baugh, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Nash), Nashville, TN.

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In this case, Plaintiff Jennifer Easter brings claims under the Family and Medical Leave Act (" FMLA" ), 29 U.S.C. § 2611 et seq., the American with Disabilities Act (" ADA" ), 42 U.S.C. § 12101, et seq., and the Tennessee Disability Act (" TDA" ), Tenn. Code Ann. § 8-50-103, against her former employer, Asurion Insurance Services, Inc. (" Asurion" ). Pending before the Court is Defendant's Motion for Summary Judgment (Docket No. 13) which has been fully briefed by the parties (Docket Nos. 14, 15, 19, 20, 21 & 22). For the reasons that follow, the Court will grant the motion in part, and deny the motion in part.


Plaintiff began working for Asurion as a Customer Service Representative on April 25, 2011. She first reported to

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Shawn Bean, and later reported directly to Robert Rowe, Asurion's Call Center Supervisor. Mr. Rowe, in turn, reported to Kathleen Peyton, Asurion's Operations Manager.

Asurion employees are provided an 8% monthly allowance for absences. That is, employees are not supposed to be absent more than 8% of their scheduled hours during any given month. When employees are going to be absent, they are expected to notify their supervisor within one hour of the scheduled start time.[1]

Employees who exceed the 8% limit are subject to discipline. While Asurion retains the discretion to terminate an employee with poor attendance at any time, an employee who violates the attendance policy may first receive a Coaching Action Plan (" CAP" ) or an Attendance Coaching and Action Plan (" ACAP" ). If the employee does not correct the attendance issues after receipt of one of those plans, the employee may be placed on a Performance Improvement Plan (" PIP" ). If attendance issues identified in the PIP are not corrected, the employee may be terminated.

In the less that two years that Plaintiff was employed by Asurion, she was disciplined for attendance violations on nine separate occasions. Asurion issued Plaintiff (1) an ACAP on December 6, 2011, because her attendance percentage for November 2011 was 9.69%; (2) a PIP on January 11, 2012, because her attendance percentage for December 2011 was 8.08%; (3) an ACAP on April 9, 2012, because her attendance percentage for March 2012 was 8.62%; (4) an ACAP on July 7, 2012, because her attendance for the month of June 2012 was 13.08%; (5) an ACAP on October 5, 2012, because her attendance for the month of September 2012 was 15.62%; (6) a verbal warning on November 30, 2012, for failing to call in advance of her absence; and (7) an ACAP on January 4, 2013, because her absence for the month of December 2012 was 17.17%.

Plaintiff admits that she received all of these disciplinary actions. Plaintiff claims, however, that she told Defendant on numerous occasions that she was tardy to work, required to leave work early, or absent from work because of a serious health condition -- irritable bowel syndrome (" IBS" ) and chronic stomach problems -- and that she needed an accommodation from Defendant because of those conditions.[2] She further claims that her October 2012 shortfall was a result of IBS and a stomach bleed for which she received hospital care, all of which she explained to her supervisor. As for the November 30, 2012 warning for failure to call in, Plaintiff claims that she offered to work late to make up any time missed. With regard to the January 4, 2013 ACAP, Plaintiff asserts that the shortfall included time she was away from her work station taking bathroom breaks because of her IBS, and she so informed both Mr. Rowe and Ms. Peyton. According to Plaintiff, Mr. Rowe said that once an employee exceeds the 8% absence rate, " it didn't matter what the reason was," and Ms. Peyton said " there is

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nothing that we can do for you." (Docket No. 16-1, Pf. Depo. at 74).

On February 5, 2013, Plaintiff was placed on a PIP because of her attendance issues in December 2012 and because her absences for the month of January 2013 was 28.9%. This PIP was in place for the entire month of February. In the PIP, Plaintiff was instructed to " consistently focus on being here when scheduled and not leaving early or coming in late[,]" and warned that " [i]f the PIP is not successfully completed in its entirety then management has the discretion to consider the next steps up to and including termination of employment." (Id. at 76).

Plaintiff did not report for work on either February 26 or 28, 2013, resulting in her exceeding the 8% limit for that month. On Friday, March 1, 2013, Plaintiff mentioned to Mr. Rowe that she might apply for FMLA leave for the two missed days. Defendant claims that the stated reasons for the absences was that Plaintiff had a sore throat and sinus infection on those days.

On Monday, March 4, 2013, Mr. Rowe, Ms. Peyton, and Amy Sutton from Asurion's Human Resources Department, decided Plaintiff's employment should be terminated because of her attendance issues and failure to improve under the February PIP. They met with Plaintiff the same day in Ms. Sutton's office.

According to Defendant, Plaintiff stated at the meeting that she wanted to apply for FMLA leave for the two February days due to sinusitis and a sore throat, and Ms. Sutton informed her that she did not believe those were qualifying conditions. In contrast, Plaintiff claims that, just as she had told both Mr. Rowe and Ms. Peyton in the past, she told Ms. Sutton that her absences were due to her IBS and chronic stomach problems, and that she needed an accommodation. Plaintiff also claims that she was instructed by Ms. Sutton to apply for leave through Defendant's third-party administrator which, at the time, was Unum Group.[3] According to Plaintiff, this was the first time that she was given any information on how to apply for FMLA leave.

Based upon Plaintiff's statements at the March 4, 2013 meeting, Defendant claims that the termination was placed on hold and Plaintiff was suspended pending resolution of her FMLA claim. Plaintiff insists that she was terminated on March 4, 2013, a claim which is supported by the deposition testimony of Mr. Rowe. In his deposition, Mr. Rowe testified that it was his understanding that Plaintiff was in fact terminated on the 4th, and that it was news to him that Plaintiff was actually terminated in April instead of March, as Defendant now claims. (Docket No. 16-2, Rowe Depo. at 29-30). Moreover, the Separation Notice that Asurion filed with the State of Tennessee indicates that Plaintiff was employed from " 4/25/11 to 3/4/2013." (Docket No. 16-1 at 76).

Plaintiff applied for FMLA leave for her sinusitis on the same day as the termination/suspension meeting. By letter dated March 5, 2013, from Unum, Plaintiff was informed that she was required to provide certification supporting her need for leave by March 19, 2013. When certification was not received by the due date, Unum notified Plaintiff that her deadline to submit the medical certification was extended

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by seven days to March 26, 2013. On March 29, 2013, Plaintiff was informed that her request for FMLA was denied for failure to provide a timely medical certification.[4] Asurion was also notified by Unum of the denial of Plaintiff's request for leave.

Meanwhile, on March 15, 2013, Plaintiff submitted a separate request for FMLA leave in connection with a colonoscopy that was performed on March 14, 2013. The " Certification of Health Care Provider" submitted by Dr. Ronald Pruitt indicates that Plaintiff had clinic visits on January 30 and March 6, 2013, and that she had a colonoscopy on March 14, 2103. Although the form does not describe Plaintiff's condition, it indicates that Plaintiff was first seen in 1997, seen again in 2004, and seen for the times listed in 2013. The form also indicated that " no further treatments" were expected and that Plaintiff was next scheduled for an appointment on March 14, 2018 (presumably for another colonoscopy).

On March 27, 2014, Plaintiff was informed by Unum that she was approved for intermittent leave from March 4, 2013 through March 14, 2013. By letter dated April 9, 2013, Plaintiff was informed that she was also approved for ...

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