AT&T call center rep takes a lot of medical leave, is terminated after 10 years. Claims retaliation, wrongful termination. $2M. San Diego County.
Service rep works ten years for phone company call center, is fired after she continually misses work; employer says that's not why she was fired – that she repeatedly failed to meet national standards.
- Case Name: Angela Hernandez v. Pacific Bell Telephone Company, dba AT&T California, Inc.
- Court and Case Number: San Diego Superior Court / 37-2014-00014271-CU-WT-CTL
- Date of Verdict or Judgment: Thursday, April 14, 2016
- Date Action was Filed: Monday, May 05, 2014
- Type of Case: Discrimination, ADA, Wrongful Termination
- Judge or Arbitrator(s): Hon. Eddie C. Sturgeon
Plaintiffs: Angela Hernandez, 60
Defendants: Pacific Bell/AT&T
- Type of Result: Jury Verdict
- Gross Verdict or Award: $2,027,884
- Net Verdict or Award: Total judgment: $4,707,129.94 (Jury Verdict: $2,027,884; Statutory Attorneys' Fees: $2,380,991.00; Recoverable Costs: $298,254.94)
Award as to each Defendant:
The jury rendered a verdict in favor of plaintiff on all claims submitted to it: CFRA retaliation; CFRA interference; disability discrimination; failure to accommodate; and failure to prevent discrimination.
The jury unanimously rejected AT&T’s "after-acquired evidence" defense, which asserted that plaintiff had committed FMLA fraud or abuse in taking leave on days she did not suffer from a serious health condition.
Lost earnings and benefits: $527,884
Past emotional distress: $500,000
Future emotional distress: $1,000,000
- Trial or Arbitration Time: 21 days, spanning 7 weeks.
- Jury Deliberation Time: 2 1/2 days.
- Jury Polls: 12-0 on most issues.
- Post Trial Motions & Post-Verdict Settlements: AT&T's motions for new trial, JNOV and remittitur of the emotional distress awards were all denied. Ms. Hernandez’s motion for new trial was also denied. Court awarded statutory attorneys' fees to plaintiff's counsel under the FEHA of $2,380,991.00 and costs of $298,254.94. Defendant has filed a notice of appeal.
Attorney for the Plaintiff:
The deRubertis Law Firm, APC by David M. deRubertis, Alyssa K. Schabloski and Diana Petikyan, Studio City.
Law Office of Terry J. Chapko by Terry J. Chapko, Coronado.
Attorney for the Defendant:
Miller Law Group by Janine Simerly and Jocelyn Chan, San Francisco.
Miller Law Group by Holly Lake and Nicole H. Perkin, Los Angeles.
Paul Plevin, Sullivan & Connaughton, LLP by Michael C. Sullivan and Danielle M. Blackhall, San Diego.
Plaintiff’s Medical Expert(s):
Ellen G. Stein, Ph.D., forensic psychology, San Diego.
Andrew Blumenfeld, M.D., neurology/headaches, San Diego.
Michael J. Rensink, M.D., ear, nose & throat, Chula Vista. (Treating physician.)
Edward Friedman, M.D., neurology, Chula Vista. (Treating physician.)
Shelly Lindholm, O.T., occupational therapy/vestibular rehabilitation, Chula Vista. (Treating physician.)
Mark Kalish, M.D., forensic psychiatry, San Diego.
Jonathan A. Schleimer, M.D., neurology, La Jolla.
Plaintiff's Technical Expert(s):
David Sharp, Ph.D., statistics, Memphis, TN.
Susan Bleecker, economics, Pasadena.
Defendant's Technical Expert(s):
G. Edward (Ted) Anderson, Ph.D., statistics and labor economics, Los Angeles.
Andrew M. O’Brien, M.S., CRC, vocational rehabilitation, Sacramento.
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 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.
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.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Lost past and future wages and emotional distress. Plaintiff was diagnosed by forensic psychologist Dr. Stein as suffering from both a lower-grade depression and anxiety.
- Special Damages Claimed - Past Lost Earnings: $240,329
- Special Damages Claimed - Future Lost Earnings: $362,555
Demands and Offers
- Plaintiff Demand during Trial: $7.5 million right before opening statement (and after the jury was picked). No response from defense..
- Defendant §998 Offer: $400,000 approximately 30 days before trial. Only offer made.
Per plaintiff's counsel:
Ms. Hernandez was a member of a class action entitled Walsh v. Pacific Bell, et al., which she opted-out of. The Walsh class action resolved for over $16,000,000 during the pendency of Ms. Hernandez’s case. Ms. Hernandez, plus about ten other call-center former AT&T employees, are represented by The deRubertis Law Firm, APC and the Law Office of Terry J. Chapko. The Hernandez matter was the first of these matters to be tried.
Also following the trial, the Communications Workers of America (CWA) Local 9509 union that represents the San Diego call-center employees went on strike for five days citing concerns about improper monitoring of sales and service reps by local management. Among other things, the Local cited an admission during the Hernandez trial by a local supervisor to having engaged in unauthorized monitoring of employees in the San Diego call centers as part of the reason the Union believed the strike was required. Also within weeks of the jury’s verdict, longstanding AT&T high-level manager and Vice President Liz Gunn retired.
Having been present at post-trial juror interviews with defense counsel, plaintiff's counsel notes that the first paragraph below, as presented by defense counsel, is completely inaccurate.
Per defense counsel:
Post-trial juror interviews revealed that the jury unanimously and quickly rejected plaintiff’s request for punitive damages (which was the thrust of plaintiff’s case and on which plaintiff’s counsel spent 45 minutes during closing argument) because they found that any wrongdoing was the result of lower-level managers, rather than a company-wide policy or direction from senior management. Thus, the jury rejected plaintiff’s “Liz Gunn” and “20/60/20” theories.
In addition, other cases filed by call center representatives who claimed that they were subject to discrimination for FMLA use have been dismissed. One was by a key plaintiff witness in Hernandez who dismissed her case without prejudice in exchange for an agreement by Pacific Bell not to pursue its costs. Another plaintiff dismissed her case with prejudice after this verdict, in exchange for an agreement by AT&T not to pursue costs if the agreement was made prior to the company’s preparation of a motion for summary judgment. Furthermore, post-trial juror interviews revealed that while AT&T’s after-acquired evidence defense was eventually rejected, several jurors agreed that the evidence supported that Ms. Hernandez took time off on days when she did not suffer from a disability, but the jurors rationalized that many people abuse privileges afforded by employers.