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Scarberry v. Michigan Bell Telephone Co.

United States District Court, E.D. Michigan, Southern Division

March 28, 2018

DANIELLE SCARBERRY, Plaintiff,
v.
MICHIGAN BELL TELEPHONE COMPANY and AT&T SERVICES, INC., Defendants.

          MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 18).

          AVERN COHN, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This is a retaliation case under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (FMLA). Plaintiff Danielle Scarberry (Scarberry) is suing Defendant Michigan Bell Telephone Company (Michigan Bell), her former employer, [1]claiming that she was terminated in retaliation for her use of FMLA leave. Michigan Bell says that there is no genuine issue as to the fact that Scarberry was terminated for violating the employee code of conduct. Scarberry seeks compensatory and liquidated damages, an order reinstating her to her former position at Michigan Bell, and an injunction prohibiting further discrimination or retaliation.

         Now before the Court is Michigan Bell's motion for summary judgment (Doc. 18), to which Scarberry has responded (Doc. 21) and Michigan Bell has replied (Doc. 23). For the reasons that follow, the motion is GRANTED.

         II. BACKGROUND

         A. Employment

         On August 25, 2003, Michigan Bell hired Scarberry as a telephonic Sales and Service Representative in its Saginaw, Michigan customer service and sales call center. Scarberry's primary duties included selling AT&T-branded internet, telephone, and television services, and providing customer service. While employed at Michigan Bell, Scarberry was a bargaining unit member of and represented by the Communications Workers of America (CWA).

         B. FMLA Leave Requests

         1.

         The facts relevant to Scarberry's FMLA claim follow, as gleaned from the parties' joint statement of facts (Doc. 28) and other parts of the record as noted below.

         2.

         Between 2004 and 2013, Scarberry requested FMLA leave numerous times to attend medical appointments and procedures, and to care for her mother. Michigan Bell approved all of Scarberry's leave requests.[2] According to the amended complaint (Doc. 9), she took 392 hours of FMLA leave in 2010, 386 hours in 2011, 412 hours in 2012, and 286 hours in 2013.

         In her deposition (Doc. 18-2), Scarberry described several incidents in which her managers and co-workers criticized her for taking FMLA leave. She said she received comments from co-workers such as “part-timer” and “must be nice coming in late, leaving early, ” as well as comments from managers such as “because you're not here, ” suggesting that others would have to take on additional work in her absence. Scarberry named Sarah Smolarek (Smolarek), Sherri Breternitz-Prebay (Breternitz-Prebay), Jeanne Kline (Kline), and Laura Tucker (Tucker) among the managers that made the comments. Scarberry noted that she received co-worker comments about once a week, but she could not remember the frequency of manager comments, nor the time frame in which they occurred. Scarberry also said that supervisor Lorraine McMillan (McMillan) refused to defend her when co-workers made comments, stating that “it's not my job to defend you.” Scarberry filed multiple complaints with the Michigan Bell human resources and equal employment opportunity offices regarding co-worker comments; the investigations always came back as inconclusive.

         Scarberry also testified regarding two incidents related to her use of FMLA leave. On one occasion, Scarberry was present at a staff meeting in which supervisors were admonishing employees for attendance problems. When Scarberry brought up the fact that leave covered by FMLA did not count as poor attendance, McMillan did not address her comment in front of the whole group; instead, she said “I'll talk to you about this later.” Scarberry also could not remember when this meeting occurred.

         On another occasion during the summer of 2013, Scarberry met with supervisors Kline and Tucker to talk about negative co-worker comments and also to inquire about taking on a leadership position within her service team. Scarberry recalled that one of the two said that “I [Scarberry] needed just to mind my own business” with respect to the co-worker comments, which Scarberry described as “in-office bullying.”

         3.

         The parties do not dispute that in the eight months preceding her termination, Scarberry requested and was granted 58 separate FMLA leaves of absence. Not clear is whether this frequency of leave use is similar to or different from that used in other time periods during Scarberry's employment at Michigan Bell. The last time Scarberry requested FMLA leave was on August 8, 2013, in order to care for her mother. Michigan Bell's records state that Scarberry said she had to leave early that day to attend a doctor's appointment.

         C. “Cramming” Incident

         1.

         The facts regarding Michigan Bell's defense follow, as gleaned from the parties' joint statement of facts (Doc. 28) and other parts of the record as noted below.

         2.

         On August 9, 2013, an individual called the Michigan Bell Saginaw call center to complain that Scarberry had changed a customer's internet service account without authorization. This practice is known as “cramming”; it is a terminable offense according to the Michigan Bell employee code of conduct. The complaint came to the attention of Michigan Bell management. An investigatory meeting was held three days later. (Doc. 18-14, Pg ID 312-14).

         Present at the meeting were Scarberry, supervisors Smolarek and Breternitz-Prebay, and two CWA officers. The supervisors played back a recording of the call in question, which reflected that Scarberry told the individual that the change was mandatory. In response, the individual told Scarberry several times that she did not have the authority to approve any changes to the account. Scarberry admits that she made the statements and actions the recording reflected, that she did make a change to the customer's account, and that, ...


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