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Murray v. AT&T Mobility LLC

September 15, 2009


The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge


This matter is before the Court on the following motions filed by pro se Plaintiff Sharon Murray: Motion for Summary Judgment (d/e 26) and accompanying Motion for Awards (d/e 27), Motion for Protection Order (d/e 65), and Motion Seeking Sanctions and Federal Penalty for Perjury Motion for Ruling on the Plaintiff's Motion for Summary Judgment (d/e 67) (Motion for Sanctions). Also pending is a Motion for Summary Judgment (d/e 48) filed by Defendant AT&T Mobility LLC (AT&T). Murray is a former employee of AT&T. After her employment was terminated, she filed a Complaint (d/e 8) alleging violations of the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), as well as claims of interference with her Illinois workers' compensation claim, harassment, and retaliation. FMLA, 29 U.S.C.A. § 2601 et seq.; ADA, 42 U.S.C. § 12101 et seq. For the reasons set forth below, Murray's Motion for Summary Judgment, Motion for Awards, Motion for Protection Order, and Motion for Sanctions are denied, and Defendant's Motion for Summary Judgment is allowed, in part. Summary judgment is entered in favor of AT&T on Murray's FMLA and ADA claims. The Court declines to exercise supplemental jurisdiction over Murray's state law claims, and thus, the remaining state law claims are dismissed for lack of jurisdiction.


Murray began working for AT&T in November 2003 as a customer service representative in AT&T's Springfield, Illinois Call Center. Murray's job duties included assisting customers, correcting billing, filing cases, and diagnosing issues, among other things. Employees in the Springfield Call Center worked staggered shifts, which were assigned based on a seniority-based bidding process pursuant to a Collective Bargaining Agreement (CBA). In January 2008, Murray's regular shift was 6:30 a.m. to 3:30 p.m.

From November 4, 2007, to February 4, 2008, Murray reported to Floor Manager Candee Arvin.*fn1 From February 4, 2008, until her employment was terminated, Murray reported to Floor Manager Susan Phares. Phares previously supervised Murray and other members of Arvin's team when Arvin was absent from work. Both Phares and Arvin reported to Area Manager Michael Woodfall. Gaye Ann Pusch has served as the Call Center Absences Manager for the Springfield Call Center since July 2005. However, Pusch was absent from work from November 6, 2007, until January 28, 2008, during which time David Simmons filled in as the Call Center Absences Manager.

During Murray's employment, AT&T maintained Attendance Guidelines for employees. Defendant's Motion for Summary Judgment, Ex. B, Declaration of Gaye Ann Pusch (Pusch Dec.), ¶ 3 & Ex. 1, Cingular Wireless Consumer Customer Services Attendance Guidelines. According to AT&T, unscheduled absences, late arrivals, and early departures have severe adverse consequences on the Call Center's ability to meet customer service expectations; thus, the Attendance Guidelines were strictly enforced. According to Murray, however, many other AT&T employees were not subjected to strictly enforced attendance guidelines. Murray specifically identifies Meredith Weaver and Tabitha Gibson as such employees.

The Attendance Guidelines provide checks on "unscheduled time away" from work. Pusch Dec., Ex. 1, Cingular Wireless Consumer Customer Services Attendance Guidelines, p. 1-2. The Guidelines expressly provide that certain types of absences, including approved leaves of absences, scheduled vacations, short term disability, and FMLA leave, among others, are not counted as "unscheduled time away." Id., p. 1. The Guidelines characterize all other time away from a scheduled shift to be "unscheduled time away." Id., p. 2. Under the Guidelines, "unscheduled time away" is not an entitlement, but is intended to be used for illness or emergencies. Id. AT&T tracked employees' unscheduled absences using a point system. An employee would receive 1/4 point for an unscheduled absence lasting five to thirty minutes, 1/2 point for an unscheduled absence lasting thirty-one to 120 minutes, and one point for an unscheduled absence lasting 121 minutes to a full shift. According to the Guidelines, points accrued based on a rolling twelve month calendar. The Guidelines expressly provide as follows: "Any unscheduled time away from your scheduled shift equaling 12 points or more in a 12-month period, regardless of reason, will be considered unacceptable absenteeism and may result in termination, unless due to extraordinary circumstances as determined by the Company in its sole discretion." Id. Murray concedes that she was given a copy of the Attendance Guidelines and was aware that an accumulation of twelve points could result in the termination of her employment. Defendant's Motion for Summary Judgment, p. 5, Undisputed Material Fact No. 12; Plaintiff's Response to Defendant's Motion for Summary Judgment (d/e 59), p. 7.

AT&T has presented an Affidavit from Call Center Absences Manager Gaye Ann Pusch, which states that, if an employee is absent for a continuous length of time, the twelve month period is extended by the length of the absence. Pusch Dec., ¶ 5. Pusch offers the following example: "if an employee is absent for 60 continuous days out of the twelve month period, the twelve month period will be extended by 60 days." Id. Murray fails to identify any evidence to support a finding that this extension was not AT&T policy, but rather responds by arguing that it is unlawful to deprive an employee using FMLA of the privilege of point expiration after twelve months have elapsed. Plaintiff's Response to Defendant's Motion for Summary Judgment, p. 6.

In 2007, Murray sought intermittent FMLA leave for two separate conditions. In 2007 and 2008, requests for FMLA leave and short term disability claims by AT&T employees were handled by a third party administrator, Nationwide Better Health. First, in 2007, Murray sought FMLA leave for a heart condition known as supraventricular tachycardia (SVT). According to Murray, symptoms of SVT include a sudden rapid heart rate with secondary effects of dizziness, sweating, inability to concentrate, and shortness of breath. By letter, dated September 10, 2007, Murray was informed that she was granted intermittent FMLA leave from August 27, 2007, through February 22, 2008, at the rate of one to two episodes per week of one day each and one doctor visit per month. Pusch Dec., Ex. 3. The letter informed Murray that this leave would be counted toward her FMLA entitlement of twelve weeks within a twelve month period.

In late September 2007, Murray became temporarily unable to work due to SVT. According to Murray, this was due to stress at work and the need to find proper medication for her condition. On September 23, 2007, Murray notified Nationwide Better Health that she needed to take a medical leave of absence from September 24, 2007, through October 28, 2007. At the time she requested this leave, Murray was informed in writing that this absence was one for which Murray would be eligible for short term disability benefits and that the leave would be counted toward her FMLA entitlement, provided she was eligible for FMLA and short term disability. See Pusch Dec., Ex. 5. Murray ultimately received short term disability benefits from September 24, 2007, until October 21, 2007.

Murray returned to work on October 22, 2007. From October 22, 2007, until December 17, 2007, Murray was on a transitional return to work schedule under which she only worked twenty-four hours a week, rather than her usual forty hours. According to AT&T, during this time Murray was allowed to use intermittent FMLA leave to reduce the number of hours worked per week, and this time was counted against Murray's FMLA allotment. AT&T asserts that Murray was notified in writing that these hours would be counted against her FMLA allotment. In support of this assertion, AT&T points to the Pusch Declaration and a letter, dated October 22, 2007, that is labeled Ex. 7 to the Pusch Declaration. See Pusch Dec., ¶ 22 & Ex. 7.

According to Murray, the October 22, 2007, letter is fraudulent. Plaintiff's Response to Defendant's Motion for Summary Judgment, p. 9-10. Murray asserts that when she returned to work on October 22, 2007, the part-time schedule was an accommodation under the Americans with Disabilities Act. Murray contends that she was never told that her part-time schedule would count toward her FMLA allotment. It is undisputed that Murray returned to full time work on December 17, 2007, and continued to use her previously approved intermittent FMLA leave on an as needed basis.

From November 6, 2007, to January 28, 2008, Murray reported her FMLA usage to the acting Call Center Absences Manager David Simmons. Murray did not utilize the toll free phone number or computerized leave tracking system that was usually required. According to Murray, this was due to "issues" with the disability tracker. Plaintiff's Response to Defendant's Motion for Summary Judgment, p. 10. According to AT&T, an employee on intermittent FMLA leave is also required to inform both his or her immediate supervisor and "Work Force" when he or she is going to be absent. Work Force is the group within AT&T that is responsible for scheduling employees and ensuring that the Call Center is adequately staffed. AT&T contends that Murray was not consistently reporting her absences during this time to her manager or to Work Force. Murray disputes this assertion by noting that if she failed to call Work Force, her attendance record should reflect No Call/No Shows, which she contends it does not.

Sometime in January 2008, Murray told her Manager Candee Arvin that she was having problems with her hands, wrists, and forearms, a condition that Murray believed to be work-related. Murray had not seen a doctor about these problems at that point. On January 29, 2008, Murray emailed Simmons to seek clarification relating to FMLA leave. Defendant's Motion for Summary Judgment, Ex. A, Deposition of Sharon Murray (Murray Dep.), p. 168 & Ex. D. Murray asked whether an individual with two different qualifying serious health conditions would be entitled to take 480 hours of FMLA leave for each condition. Simmons replied, "No." Defendant's Motion for Summary Judgment, Ex. D, p. 1. In a subsequent email, Simmons explained that short term disability leave also counted against an employee's FMLA allotment. Murray eventually replied by email as follows: "Ok well if std counted as my 480 im srewed this will be not good u know we gotta talk." Defendant's Motion for Summary Judgment, Ex. E. According to Murray, Simmons advised her to seek an ADA accommodation because she was not going to have enough FMLA time to cover her alleged work-related injuries. Murray contends that she informed Arvin of Simmons' advice and Arvin agreed with it. Simmons informed Murray that she was going to need to submit medical information and would also need to see a doctor for the company. Murray believed that AT&T would arrange the doctor's appointment for her.

Pusch states that, when she returned to work on January 28, 2008, she learned that, because Murray had been reporting her absences to Simmons rather than utilizing the toll free phone number or computerized leave tracking system, Nationwide Better Health had not been notified of many of Murray's FMLA related absences. As a result, no notices had been generated by Nationwide Better Health as to Murray's leave requests. Pusch asserts that, upon her return to work, she manually entered Murray's leave requests into the system after piecing together information from Simmons, Work Force, and Murray herself.

Murray asserts that, in late January 2008, she suffered increasing harassment by Arvin, which caused her SVT attacks to increase. According to Murray, Arvin yelled at her, called her names, and told her that the other representatives on the team did not like her. Murray complained to her Union representative about Arvin's behavior, but feared that she would be subjected to increased harassment and retaliation when she learned that the Union representative had spoken to Area Manager Woodfall about the situation. Murray testified that she had previously reported to Arvin for six months, beginning in January 2006, and had experienced problems with her. Murray concedes that these problems with Arvin began prior to the time Murray was diagnosed with SVT. In light of this history, when Murray returned from FMLA leave in November 2007, she asked Human Resources Manager April Cook to help her get assigned to a team other than Arvin's. Cook was unable to accommodate this request, but told Murray that, if any problems came up, management would address them on a case-by-case basis.

Murray concedes that, as of January 29, 2008, she understood that AT&T was taking the position that the time during which Murray did not work a full schedule from October through December 2007, would be counted against her for FMLA purposes. Murray Dep., p. 174. In a written notice, dated February 1, 2008, Nationwide Better Health informed Murray that the leave she took on January 28, 2008, was not qualified for FMLA protection. Pusch Dec., Ex. 6. Murray concedes that, by February 8, 2008, she knew that AT&T was taking the position that she had exhausted her FMLA allotment. Murray Dep., p. 225. Murray informed AT&T that she disagreed with its calculation of her FMLA leave and believed that she still had time available. She continued to submit FMLA requests for time away from work in February 2008.

Beginning on February 4, 2008, Murray was assigned to a team managed by Phares. According to Murray, she had prior experience with Phares, because Phares would fill in for Arvin on occasion. Murray believes that Phares treated Murray inappropriately on several occasions when she filled in for Arvin. After being assigned to Phares' team, Murray informed Phares about her heart condition via email. According to AT&T, Phares had previously suffered from the same condition which had been corrected by surgery. Defendant's Motion for Summary Judgment, Ex. G, Declaration of Susan Phares (Phares Dec.), ¶ 4. Phares avers that she asked Murray to let her know when she was suffering from the heart condition and she would help her. Id. Phares also states that she told Murray that she "had no problem with her taking the necessary breaks for her heart condition." Id. However, without providing details, Murray asserts that she was not allowed to tend to her heart condition. Phares states that she understood that, while Murray was experiencing an SVT episode, it was best for her to be isolated so that she could get her heart rate down. According to Phares, "Murray agreed to keep [Phares] informed of her need for a break for this reason." Id. Phares avers that, when she noticed Murray was away from her workstation, Phares would look for her to make sure she was not in need of assistance. Phares states that, on several occasions, she found Murray in the lobby, speaking with other employees, talking on her personal cell phone, and doing other things that were not related either to work or to her medical condition. Id., ¶ 6.

According to Phares, on February 21, 2008, Murray's name showed up on a "missing in action" report, which revealed that Murray had logged out on break at 7:45 a.m. with the rest of the team, but had failed to return to work at 8:00 a.m. as scheduled. Phares Dec., ¶ 8. Phares went to look for Murray at approximately 8:20 a.m. She ran into April Cook, who told Phares that she had seen Murray on the phone in the lunchroom. Phares went to the lunchroom and found Murray talking on her personal cell phone. Phares told Murray that she needed her to get off the phone and start taking Call Center calls. Murray was talking to Kimberly White of Sedgwick CMS, AT&T's third party administrator for workers' compensation claims. When Murray informed White that her manager wanted her off the phone, White asked to speak to Phares. Murray handed the phone to Phares. White informed Phares that she would need about fifteen additional minutes to complete her interview of Murray. Phares responded that this was fine. According to Phares, she then handed the phone back to Murray. According to Murray, Phares shoved the phone in Murray's hand so forcefully that it pushed Murray's hand back. Murray Dep., p. 122. Murray states that the phone then slipped out of her hand and hit the table. Murray testified that she was crying after this incident, but was able to complete the interview with White.

Later on February 21, 2008, Murray, Pusch, and Phares met to discuss Murray's attendance. Pusch told Murray that she did not have any FMLA time remaining and that if she were to call in attempting to use FMLA leave, her requests would be denied. Murray advised Pusch and Phares that they were wrong about her FMLA time, and she threatened to file a complaint with the Department of Labor if the company failed to recredit FMLA time that she believed was improperly taken from her. Pusch also told Murray that she had not been approved for intermittent FMLA leave for the condition involving her hands, wrists, and forearms. Murray characterized this condition as a workers' compensation injury, although, at this point, her workers' compensation claim had not been approved by AT&T's third party administrator Sedgwick. Pusch told Murray that absences that Murray claimed resulted from her work related injury would be identified on Murray's attendance history by a "WC" notation. Pusch stated that, if these absences ultimately became excused, they could go back and designate them as such. Murray concedes that Sedgwick did not approve any claim for workers' compensation benefits for Murray during her employment, but asserts that her claim was approved after her termination.

On or about February 26, 2008, Area Manager Woodfall reviewed Murray's attendance history and observed that she had accumulated 17.5 points under the Guidelines. Defendant's Motion for Summary Judgment, Ex. K, Declaration of Michael Woodfall (Woodfall Dec.), ΒΆ 5. Woodfall also noted several additional recent absences for which Murray had requested FMLA leave that were going to be denied due to her exhaustion of FMLA time. Woodfall consulted with his supervisor, Nancy Wells, Director of the Springfield Call Center, and ...

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