AT&T call center rep takes a lot of medical leave, is terminated after 10 years. Claims retaliation, wrongful termination. $2M. San Diego County.

Facts and Background

• Facts and Background:

  Plaintiff worked as a sales and service rep in one of the Pacific Bell Telephone Company dba: AT&T California, Inc. (AT&T) San Diego call centers from 2001 through her termination in September 2012. Plaintiff alleged she suffered from migraines and vertigo that required her to miss time from work and for which she took intermittent leave under the Family Medical Leave Act (FMLA) and California’s Family Rights Act (CFRA). FMLA/CFRA permit a maximum of 480 hours of leave per year.

  In the later years of her employment, plaintiff took FMLA time-off as follows: 2006: 366 hours; 2007: 413 hours; 2008: 422 hours; 2009: 478 hours; 2010: 314 hours; and 2011: 480 hours. Most of this leave was intermittent rather than continuous leave. AT&T granted every one of plaintiff’s FMLA requests her entire career without ever denying her FMLA leave for which she was qualified.

  In 2010, plaintiff received a poor annual performance evaluation, which rated her 1.8 out of 5.0, with the cut-off for “does not meets expectations” being 2.8, because she was failing to meet company expectations with regard to the National Call Flow, which all bilingual sales and service representatives are required to follow when handling customer calls.

  Then, in 2011, pursuant to an annual reshuffling of teams, Ms. Hernandez was assigned to a new supervisor and received performance-based discipline in April and May 2011.

  In September 2011, Ms. Hernandez took an extended leave of absence because of a vertigo flare-up. During this leave, she exhausted her FMLA allotment for the year and AT&T’s disability insurance department determined that her medical condition did not justify her continued receipt of disability benefits because, it contended, she was not objectively unable to work. Consequently, she was placed on what AT&T calls a “Company-Initiated Leave” (CIL).

  Under AT&T’s policies, a CIL is a non-job-protected leave. Thus, when plaintiff returned from her leave in January 2012, she was written up for failing to meet AT&T’s attendance standards because she had exhausted FMLA and remained out on leave. Plaintiff was then transferred to a new supervisor who disciplined her for performance-related issues in March, May and August of 2012 and for attendance-issues in March and July 2012.

  In September 2012, plaintiff was terminated allegedly for continued failure to follow the “service rep standards,” i.e., the call-flow process that sales and services reps were to follow in handling customer calls.

• Plaintiff's Contentions:

  Plaintiff alleged that she was the victim of a widespread practice of FMLA-targeting by management at AT&T’s call-centers. Her counsel put on evidence that an AT&T Vice President in charge of numerous call-centers (Liz Gunn) had developed unlawful policies and procedures that encouraged unlawful discipline against employees with medical issues or who took FMLA leave, including a 20/60/20 program that targeted the “bottom 20%” of sales and service reps for termination. Among other things, those sales and service reps in the “bottom 20%” would have the calls they handled for customers monitored more frequently than those in the “top 20%” or the “middle 60%.”

  Plaintiff’s counsel alleged that the “bottom 20%” was determined based on attendance. including specifically FMLA use. Plaintiff introduced into evidence that Ms. Gunn wrote an email instructing her team to identify the “problem children” (referring to those who used up their FMLA in a year) and “move this person out of the business before FMLA starts back over on January 1,” which plaintiff alleged confirmed the fact that the FMLA-targeting scheme reached the highest levels of call-center management.

  Plaintiff also offered evidence that call-center management held “worst case calls” in which those sales and service with the worst attendance records (including FMLA) would be scrutinized for both attendance-related discipline and performance-related discipline.

  Plaintiff alleged that her termination was really because of the amount of FMLA time she took, that AT&T interfered with her right to leave by pressuring sales and service reps not to use FMLA and that the discipline she received for having taken the company-initiated leave constituted a failure to accommodate her disability-based time off.

• Defendant's Contentions:

  First, AT&T argued that plaintiff was terminated for a legitimate, non-discriminatory reason: her long history of poor performance and failure to adhere to the National Call Flow, and continued failure to improve her performance. Three separate supervisors over three separate years (2010, 2011 and 2012) all observed and documented the same performance issues with Ms. Hernandez, which showed that the performance issues were real and substantiated.

  Second,  AT&T argued that Liz Gunn, who was never in plaintiff's chain of command, never had any influence over the San Diego call center, which was managed by a separate Vice President (Jody Garcia).  Thus, any program or practice that Ms. Gunn may have implemented in her call centers was completely irrelevant and did not apply to Ms. Hernandez or the circumstances of her termination. 

  Furthermore, AT&T argued that there was no company policy or practice of “targeting” employees who took FMLA, nor was there any direction from upper management to do so.  AT&T also presented evidence that Liz Gunn’s 20/60/20 was never implemented in the San Diego call center where plaintiff worked, and that “worst case calls” did not occur during the relevant time period and, in any event, did not take into consideration protected (FMLA) absences. 

  Third, AT&T argued that it granted plaintiff all FMLA time that she requested and was eligible for, which undermined claims that management targeted people who took FMLA.

  Fourth, AT&T asserted that it had generous FMLA policies, which paid employees for all hours of intermittent FMLA taken, which was also inconsistent with the allegation of targeting those who used FMLA. AT&T also grants each eligible employee a new 12 weeks of FMLA time every January 1st for the new calendar year. Based on these generous leave policies that go beyond what the law requires, AT&T introduced evidence that more than 80% of its San Diego call-center employees took FMLA leave and only a very small percentage of these employees were terminated, cutting against plaintiff’s “FMLA-targeting scheme” theory.

  Finally, AT&T contended that plaintiff had abused her FMLA leave by using paid FMLA leave on days that she was not suffering from or incapacitated by her alleged migraines. AT&T introduced evidence of plaintiff not taking or failing to fill prescriptions for both her preventative migraine medication and her acute migraine treatment medication, which raised questions about whether her migraines were as frequent or severe as she claimed. 

  AT&T also introduced evidence that plaintiff’s treating neurologist instructed her to accurately report her migraine days so that he could properly treat her condition. Yet, the overwhelming majority of migraine-related FMLA days she took were not reported to her neurologist as days she suffered migraines, nor did she actually visit her neurologist on the days she took FMLA for migraines.