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Peters v. University Bank

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

March 30, 2018

LORENA PETERS, Plaintiff,
v.
UNIVERSITY BANK and MIDWEST LOAN SERVICES, INC., Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [#18], DENYING PLAINTIFF'S MOTION TO FILE SUR-REPLY BRIEF [#29] AND SCHEDULING ORDER

          Denise Page Hood Chief Judge, United States District Court

         I. BACKGROUND

         A. Procedural Background

         On June 7, 2016, Plaintiff Lorena Peters (“Peters”) brought this action against Defendants University Bank (“University Bank”) and Midwest Loan Services, Inc. (“MLS”) (collectively, “Defendants”), alleging that Defendants violated the American with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (Count I), the Michigan Persons with Disabilities Civil Rights Act (PWDCRA), MCL § 37.1101 et seq. (Count II), the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 (Count III), Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Count IV), and the Elliott-Larsen Civil Rights Act (ELCRA), MCL § 37.2202 et seq. (Count V). (Doc #1) Peters seeks injunctive relief, and compensatory and punitive damages. Id. Defendants filed an Answer on September 23, 2016. (Doc # 8)

         This matter is before the Court on Defendants' Motion for Summary Judgment filed on August 14, 2017. (Doc # 18) Plaintiff filed a Response on September 18, 2017. (Doc # 22) On October 2, 2017, Defendants filed a Reply. (Doc # 24)

         B. Factual Background

         MLS is a mortgage loan subservicing company located Houghton, Michigan that services mortgages for financial institutions. (Doc # 18, Pg. 9) MLS was formerly a subsidiary of, and is now a department of University Bank. From February 21, 2005 to May of 2014, Lorena Peters worked as a Customer Service Associate (“CSA”) in the Customer Services Department at MLS. (Doc # 22, Pg. 5; Doc # 18, Pg. 9) The Costumer Services Department manages, in part, incoming calls to its customer service call queue. The CSAs answer the incoming calls to the queue. (Doc # 18, Pg. 9) CSAs process payments, assist borrowers in the queue with payments, process transaction histories, and explain escrow and payments for customers. CSAs work Monday through Friday on staggered, eight hour shifts between 8 a.m. and 8 p.m., with a one hour lunch break.

         Peters retained the title of Spanish Language Specialist for most of her tenure at MLS. As the Spanish Language Specialist, Peters's primary responsibility was to provide services to MLS's Spanish-speaking borrowers. (Doc # 22, Pg. 5) Peters's secondary function was to quote payoffs (a financial statement indicating the total amount to be paid in full by a certain date for a particular borrower).

         Nearly 90% of the Spanish-speaking calls Peters handled came from borrowers of MLS client Baxter Credit Union. (Doc # 18, Pg. 10) In 2010, Baxter ended its relationship with MLS, which led to a dramatic reduction in the number of Spanish-speaking calls handled by MLS. In response to this change, Ed Burger, then MLS President, directed Peters's supervisor Rick Ginter (“Ginter”) to assign her to the queue with the other CSAs. (Id. at 11) Ginter informed Peters that she would be required to start servicing MLS's English-speaking customers. (Id.) Peters struggled with the transition, and despite efforts by Ginter to assists, Ginter eventually allowed Peters to work almost exclusively on payoffs and not the queue. (Id.)

         On September 17, 2010, Peters filed an internal complaint against Ginter. (Id.) Peters complained, in part, that Ginter asked her to take an English language class to improve her English, and that Ginter was attempting to force her to speak on the phone with customers in English when she was hired to assist Spanish- speaking callers. (Id.) Cathy Revord, the SVP, Chief Human Resources Officer, investigated Peters's complaint. After completing the investigation, Revord told Peters she had addressed Peters's issues, and instructed Peters that her work duties at MLS included working in the queue with English-speaking callers. (Id. at 3-4)

         Sometime in 2012, Peters notified Ginter about her arthritic condition. (Doc # 22, Pg. 6) At that time, Peters informed Ginter that the medications she took in the morning for her arthritis made her ill, rendering her frequently unable to arrive at work by 8:00 a.m. Peters requested that she be scheduled for a later shift. (Id.) The customer service department had four scheduled shifts: 8:00 a.m. to 5:00 p.m., 9:00 a.m. to 6:00 p.m., 10:00 a.m. to 7:00 p.m., and 11:00 a.m. to 8:00 p.m. Peters was often scheduled to work from 8 a.m. to 5 p.m. (Id.) Upon hearing Peters's medical issue, Ginter allowed Peters to work the 9:00 a.m. to 6:00 p.m. shift.

         In October of 2013, Peters requested, per her doctor's recommendation, to work remotely during the winter season because the cold temperatures in Houghton, Michigan exacerbated her arthritis. (Id. at 7) Again, Ginter, along with then-President Ed Burger, supported Peters's request. Peters worked remotely from Florida from December 2013 to June of 2014. (Doc # 18, Pg. 11) During this period, Peters arrived late to work at times because of the arthritis and her medications. (Id.)

         In May 2014, Tim Korby (“Korby”) replaced Ginter (who retired) as Assistant Vice President (“AVP”) of Customer Service. (Id.) Korby reported to Rhonda Welsh, the Senior Vice President of Loan Administration. Korby was Peters's direct supervisor. Korby learned that Peters was working remotely due to her disability. (Doc # 22, Pg. 7) When Peters returned to Houghton in June 2016, Korby approved Peters request for a new chair to accommodate her arthritis. (Doc # 18, Pg. 11)

         Within a month of becoming Peters's supervisor, Korby e-mailed Revord because he had concerns about Peters's accommodation arrangement with MLS to work remotely during the winter months. (Doc # 22, Pg. 8) In a subsequent discussion with Revord about Peters's accommodation, Korby claimed that Peters's “production is not very good” and told Revord that he intended to set “stricter expectations” on her. (Id.) After speaking with Korby, Revord requested that MLS's Talent Manager, Nick Raubenolt, begin searching for a customer service representative “fluent in Spanish.” (Id.) The new hire was supposed to serve as support for Peters. Id.

         On July 7, 2014, Peters sent an email to Korby requesting time off on July 9 and 10. (Doc # 18, Pg. 12) Korby replied: “Why such short notice?” Peters responded: “Something that just happened now.” (Id.) Korby and Peters met to discuss her request for time off. (Id.) Peters informed Korby that she had received a letter from Homeland Security scheduling an appointment for July 10. (Id.) The letter was dated June 28, 2014. (Id.) Peters alleges that Korby stated, “some people from immigration were here looking for somebody, ” during the meeting. (Doc # 18-2, Pg. 16) Korby approved Peters's request for time off. (Doc # 18, Pg. 12)

         Peters sent an email to Revord a few hours after the meeting between Korby and Peters. (Id.) Peters expressed that she did not like explaining herself to Korby. (Id.) Peters also described the change in her work environment after Korby became her supervisor. Peters complained: (1) “[f]or some reason [] Korby has a problem talking or working with me”; (2) Korby was “not nice” and gave her a “hostile vibe”; (3) the last time she needed to visit the immigration office to update her residence status, Korby “asked her personal questions and the reasons why I [Peters] had to go there”; (4) “[Korby] really makes me feel uncomfortable because he treats me different from the rest of the people in my department.” (Doc # 22, Pg. 9)

         Peters had continued to work almost exclusively on payoffs when Korby became her supervisor. Korby felt that Peters was unable to keep up with the payoffs and often required assistance from other employees to complete her work. (Doc # 18, Pg. 13) Korby received emails from Peters and her colleagues stating that Peters needed assistance with completing the payoffs. (Id.) Korby concluded that he could hire an entry level employee who could do a better job of handling the payoffs than Peters. (Id.) Korby felt that this could allow him to assign Peters to work the queue like the other CSAs. (Id.)

         On August 5, 2014, MLS posted an opening for a position identical to Peters's role completing the payoffs on external sites. (Doc # 22, Pg. 11) Peters saw the posting, and emailed Korby to find out why the position was posted. Korby replied that the position was merely a “back-up.” (Id.) Peters alleges that, following the email exchange, Korby came to her work station and asked her, “Did you freak out?” (Id.)

         Korby decided to contact MLS's Talent Acquisition Manager, Nick Raubenolt, to recommend her sister, Nora Garduno (“Garduno”), for the position. (Id.) After reviewing Garduno's resume and finding her to be a qualified candidate, Raubenolt scheduled an interview for Garduno with Korby. (Id.)

         Korby emailed his supervisor, Rhonda Welsh (“Welsh”) stating, “Good news, we got a Spanish speaking applicant. Bad news, it's Lorena's sister. I will go into this interview open minded but this doesn't really solve our overall issue.” (Id. at 12) Korby sent a similar email to Revord. Revord responded, “You are right. Lorena's sister in the position will complicate things even more.” (Id.) Revord decided to contact Raubenolt and inform him that hiring Garduno would violate MLS's nepotism policy.[1] (Id.) Garduno's scheduled interview was subsequently canceled. Korby hired Karissa Satala to the entry level, and lower-paying, position of Customer Service Assistant.

         In September 2014, Korby began changing Peters's work assignments. (Id.) He removed Peters direct phone line, which was used by Spanish-speaking borrowers to reach her. Peters alleges that when she asked Korby what those callers would do without the direct line to Peters, Korby responded, “They should speak English.” (Doc # 18-2, Pg. 85) Korby also reassigned Peters to the customer service queue, instructed Peters to change her job title form Spanish Language Specialist to Customer Service Representative, and he removed Peters from payoffs. (Doc # 22, Pg. 13) To assist Peters with her transition to the queue, Korby assigned a co-worker, Jen Pindral, to provide Peters with on the job training. (Doc # 18, Pg. 13) Pindral advised Peters and Korby that Peters could effectively work the queue. Id.

         On October 27, 2014, Korby issued Peters a verbal warning for tardiness. (Id. at 14) Peters alleges that symptoms from her arthritis medications were the cause of her frequent tardiness. (Doc 3 22, Pg. 14) After Peters explained the reasons for her tardiness to Korby via email, he forwarded the response to Welsh stating, “Always with an excuse.” (Id.)

         On October 31, 2014, MLS approved Peters's request to work remotely, and she left for Florida the next day. (Doc # 18, Pg. 14) On November 18, 2014, Korby sent Peters an email stating that her call volumes were below average. (Id.) He asked Peters to draft a detailed explanation and send it to him that day. He also asked Peters to call him after she sent the email. (Id.) Peters never sent the email. On November 20, 2014, Korby issued Peters a written Corrective Action due to her poor performance and insubordination. (Id.) Peters admitted that she took fewer calls than other CSAs. (Id.) Peters responded on November 21, 2014, explaining to Korby that this was her first time working in the queue. (Id.)

         On November 28, 2014 at 8:14 a.m., Peters sent Korby an email informing him that she would not be in that day because she was sick. (Id.) Korby replied via email asking why she reported her absence fourteen minutes after her start time. Hours later, Peters sent Korby a reply stating: (1) she was throwing up; (2) she never had a problem with a previous supervisor; (3) she was hired to service Spanish-speaking customers; (4) she alleged that Korby said “customers should speak English”; (5) asked who else could service their Spanish-speaking customers; (6) claimed that she was unable to satisfy her daily quote of calls due to Korby's changes; and (7) accused Korby of threatening her daily with termination or disciplinary action. (Doc # 22, Pg. 15-16) Finally, Peters stated in the email, “If my being Hispanic offends you I am sorry. Instead of all this unnecessary harassment you can lay me off.” (Id.) Peters never discussed the email with Korby or anyone else in management. (Doc # 18, Pg. 17)

         Later that day, Korby forwarded Peters's email to Revord and stated, “I would like to discuss the option of letting Lorena go.” Korby also cited Peters's insubordination and complaints about him. (Doc # 22, Pg. 16) On December 1, 2014, Revord replied to Korby's email stating, “Agreed.” (Id.) Korby terminated Peters on December 4, 2014. (Id.) The stated reasons for Peters's termination were tardiness and poor performance. Korby replaced Peters with Kassie Daavtilla. (Id. at 17)

         On November 6, 2015, Peters applied for Social Security Disability Insurance (“SSDI”). (Doc # 18, Pg. 17) In her application, Peters stated she “became unable to work because of my disabling condition on December 4, 2014.” (Id.) She also stated, “I am still disabled.” Id. Peters also stated that her condition became severe enough to keep her from working on December 4, 2014. (Id.) Peters has not looked for work since filing the SSDI application.

         In the Function Report submitted in support of her SSDI application, Peters stated that she could not perform any of the tasks required by her job as a CSA. In a Cervical Spine Medical Source Statement submitted in support of her application, Peters's physician, Dr. Thomas McConnon, opined that Peters's conditions are permanent, and imposed several imitations on her mobility. (Id. at 18) In a December 5, 2016 letter to the Social Security Administration, Peters's attorney represented that, effective December 4, 2014, Peters's arthritis and other conditions prevented her from performing any of her past work and any regular full-time employment. (Id. at 19) Peters's attorney added that “it was Dr. McConnon's opinion that these restrictions were in effect since the AOD of December 4, 2014.” (Id.) Peters's initial application for SSDI was denied and is currently on appeal.

         Peters brings claims against Defendants for disability discrimination and retaliation, violations of the Family and Medical Leave Act, and national origin discrimination. (Doc # 1) For the reasons set forth below, Defendants' ...


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