ANNEMARIE WOLNY, Petitioner, vs. ASURION, Respondent. / | Case No. 21-0490 |
RECOMMENDED ORDER
Pursuant to notice, Administrative Law Judge (“ALJ”) W. David Watkins, of the Division of Administrative Hearings (“DOAH”), conducted the final hearing in this case on April 27, 2021, via Zoom teleconference.
APPEARANCES
For Petitioner: Annemarie Wolny, pro se
W4598 County Road RR Random Lake, Wisconsin 53072
For Respondent: Casey M. Duhart, Esquire
Waller Lansden Dortch & Davis, LLP 511 Union Street, Suite 2700
Nashville, Tennessee 37219
STATEMENT OF THE ISSUE
Whether, Respondent, Asurion Services, LLC (“Respondent” or “Asurion”), engaged in unlawful employment practices as alleged by Petitioner, Annemarie Wolny (“Petitioner”), in violation of the Florida Civil Rights Act of 1992 (“FCRA”), as set forth in section 760.10, Florida Statutes (2020).1
1 Unless otherwise noted, all statutory references are to the 2020 version of the Florida Statutes.
PRELIMINARY STATEMENT
Petitioner filed three complaints with the Florida Commission on Human Relations (“FCHR”) on November 9, 2018 (“First Charge”); October 8, 2019 (“Second Charge”); and May 21, 2020 (“Third Charge”), respectively.
The First Charge alleged that Asurion retaliated and discriminated against her based on her disability when she was issued a final written warning for being argumentative with a service provider. The allegations in the First Charge covered dates from November 9, 2017, to November 9, 2018.
The Second Charge alleged that Asurion retaliated and discriminated against her based on her disability. Specifically, Petitioner alleged the following:
Denial of ADA accommodation on February 14, 2019
Denial of ADA accommodation in July 2019
Not included on company emails
Leadership ignored chat messages
Supervisors completed out duplicate tasks
Other agents took credit for her work
Issues with her computer
Received a write up in May 2019 for failing to call a client
Not considered for a position on the Amazon Priority Team in July 2019
The allegations in the Second Charge covered dates from October 8, 2018, to October 8, 2019.
The Third Charge alleged that Asurion denied Petitioner reasonable accommodations, discriminated against her on the basis of her disability, and terminated her employment in retaliation for requesting accommodations and filing two charges with the Commission in violation of the FCRA. The allegations in the Third Charge covered dates from May 22, 2019, to May 21, 2020; and are the allegations at issue herein.
Thereafter, FCHR investigated Petitioner’s claims, and on May 13, 2020, FCHR issued a determination finding “REASONABLE CAUSE” to believe that an unlawful employment practice occurred.
On February 11, 2021, Petitioner filed a Petition for Relief for the Third Charge. The same day, Petitioner’s Petition for Relief was referred to DOAH for the assignment of an ALJ to conduct a formal hearing and render a recommended disposition to FCHR.
Pursuant to notice, on April 27, 2020, a final hearing was conducted before the undersigned. At the hearing, Petitioner presented her own sworn testimony, as well as the testimony of four witnesses: Katrina Brandt, former Asurion employee; Ariel Adkinson, former Asurion employee; Heidi Davila Labzioui, current Asurion employee; and, Shevon Peet, counselor. Petitioner’s Exhibits 7, 8, 18, 29, 37, 38, 41, 45, 77 through 79, 89, 93, 94, 102, 108
through 110, 114, 122, 125, 132, and 132(a) were received in evidence.
Asurion presented the testimony of Terry J. (“TJ”) Mark, Services Operations Coach at Asurion; Ashley Maloney, Services Operations Manager at Asurion; and Lauren Welch, Human Resources Business Partner.
Asurion’s Exhibits 1 through 3, 6 through 10, 12, and 17 were received in evidence.
FINDINGS OF FACT
Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made.
Asurion is a provider of electronic device insurance, warranty and support services for cellular phones, consumer electronics, and home appliances. As part of its services, Asurion provides technological support and repair services for the world’s leading mobile carriers, retail companies, and other businesses, enabling subscribers and customers to fully utilize their digital devices, applications, and equipment.
Asurion is an employer as defined by the FCRA. See § 760.02(7), Fla. Stat.
Petitioner was employed as a Service Advisor with Asurion’s Service Operations Program beginning on March 27, 2017. Essential job functions of the Service Advisor role include: the ability to utilize active listening skills and troubleshoot resolutions; the use of proper tone in providing information to customers and service providers; and the ability to resolve escalation and complaints, among other things. As a Service Advisor, Petitioner was responsible for working and negotiating with Asurion’s network of service providers to ensure a high level of customer satisfaction in their repair experience.
Service Advisors are trained during their first week of employment, and thereafter, can access online training tools at any time during their employment.
When hired, Petitioner received an electronic copy of Asurion’s Employee Handbook which contains, inter alia, Asurion’s equal opportunity employment policy prohibiting “discriminat[ion] against applicants or employees on the basis of … physical or mental disability….” The Employee Handbook also outlines Asurion’s Reasonable Accommodation policy, Attendance policy, and Customer Relations and Professional Behavior policy.
During her early months of employment with Asurion, Petitioner established a reputation as a quick learner, and was eager to acquire new knowledge and skills, while maintaining a keen sense of awareness to detail. Petitioner was trained in several different departments at Asurion, and was willing to work during the holidays. During the first several months of her employment, Petitioner earned a number of accolades for quality work, including being recognized as employee of the month for December 2017. Field service managers would often recognize Petitioner’s hard work.
Due to the quality of her work, Asurion auditors would frequently reach out to Petitioner and compliment her on her work. Sometimes agents from other teams would congratulate Petitioner on her work, since it made their jobs easier. On one occasion, a customer even wrote a letter to Asurion reporting the “impeccable” service they had received from Petitioner.
In June of 2017, Petitioner witnessed a colleague being bullied by another colleague. The victim of this incident was crying at her desk, which made Petitioner believe that this treatment needed to be reported to her superiors. Petitioner reported the incident to her supervisor, Marie Alter. A few months later, Petitioner was reassigned to another department. On another occasion (July or August 2017), Supervisor Megan Bass confided in Petitioner her dislike for Petitioner’s African-American colleague, Ebony Shipman. Ms. Bass slandered Ms. Shipman to Petitioner, alleging that
Ms. Shipman almost hurt Ms. Bass’s chance for promotion.
On October 14, 2017, Petitioner and her four-year-old daughter were the victims of a violent and brutal physical attack. Following the attack, Petitioner began to display signs of mental illness, and as a consequence, began seeing a mental health counselor. This illness was diagnosed as Post Traumatic Stress Disorder (“PTSD”).
Approximately three months following the October 2017 incident, Petitioner experienced a second traumatic event, which further compounded her PTSD. In an effort to continue her ability to function at work, Petitioner
requested accommodations for her PTSD condition. Specifically, Petitioner requested on different occasions to have additional paid breaks during her shift, to be moved to a team that did not handle customer escalation calls, and to have intermittent leave under the Family and Medical Leave Act (“FMLA”). As a result of this request, Petitioner was approved for three 10 to 15 minute unpaid breaks.
In early 2018, Petitioner witnessed harassment and discrimination towards disabled colleagues, and other colleagues. Being subjected to this inappropriate behavior triggered Petitioner’s PTSD, and so she requested a one-on-one meeting with her then-manager, Nestor Lebron, in February of 2018 to discuss her discomfort with her working conditions.
At hearing, the work culture at Asurion’s Command Center was described by former and current employees as toxic and unprofessional. In addition, some employees were treated more favorably by supervisors than others. The consistency of their description of the dysfunctional workplace lends credibility to their testimony.
In March or April 2018, Petitioner requested to work from home as she was becoming extremely sensitive working in a hostile work environment in which she felt she and her colleagues were being targeted for harassment. Even though Asurion had many work-at-home agents, Petitioner’s request was initially denied.
On April 12, 2018, Petitioner met with Lauren Welch from Human Resources to discuss her requested work-at-home position. In this meeting, Petitioner discussed her troubling observations of the activities going on in the Command Center, including the unfair and unequal treatment that Petitioner had observed in that workplace. During this meeting, Petitioner offered to provide Asurion with medical documentation of her PTSD illness to assist with her work-at-home approval. Ms. Welch advised that documentation was not necessary.
During the meeting of April 12, 2018, Petitioner made her first of many requests to be transferred to the SST Team, working with the Parts Department. Petitioner had worked on this team previously and had found it to be less stressful. Petitioner was not reassigned to this department, but subsequently learned that other agents, including Beverly Miller, Ray Legliter, and Mary Henderson, were all moved to that department following Petitioner’s request.
While Petitioner was not approved for transfer to the Parts Department, her request to work from home was approved, effective April 30, 2018.
Petitioner discussed her medical condition with her supervisor, Marie Alter, during a one-on-one meeting on May 11, 2018.
During her first month of working from home, Petitioner was falsely accused by Ms. Alter of performing certain unprofessional actions. While Petitioner consistently maintained that she had not acted inappropriately, Ms. Alter did not relent in her accusations. Understandably, these unfounded accusations reinforced Petitioner’s belief that she was being targeted for harassment.
On June 15, 2018, Petitioner received a “Final Warning” following her telephonic interaction with an employee of a contracted service center. As Petitioner explained at hearing, “I was mistreated by an employee that was contracted through Defendant. This employee works with Defendant to repair appliances. This woman was being argumentative and refused to provide the answers I needed to perform my work.” In response to the verbal abuse she was receiving, Petitioner disconnected the call. The Final Warning noted that “Your tone overall became curt, short and very defensive.” Petitioner acknowledged that she could have done a better job de-escalating the situation, and requested that she be approved for additional training, including listening in on other escalated calls.
In response to Petitioner’s request for some kind of plan to help strengthen her performance in an area she struggled with, an Action Path meeting was created with Supervisor Marie Alter on June 25, 2018, for every Monday. The first meeting was scheduled for July 2, 2018, and in a follow-up email from Ms. Alter, it was explained that the meetings over the next couple of months would focus on improving Petitioner’s communications with providers and customers. However, on July 9, 2018, Petitioner’s Action Path was cancelled, without explanation.
Petitioner made ongoing efforts to clearly communicate to Asurion the effects of her PTSD on her mental condition, and the impact that stress had on exacerbating her condition.
Although Petitioner had made several requests to listen to a call where an agent successfully de-escalated an escalated client, she was advised Asurion could not locate any. However, in July 2018, quality analysts graded a call in front of the entire Command Center of an African-American woman, Tangia Carter. Ms. Carter received a score of 10 out of 100. No effort was made to hide the identity of the employee being graded. The employee was humiliated and embarrassed as a result. Petitioner reported this incident to her supervisor.
In July 2018, another agent disconnected a call with a customer. The agent, Josh Johnson, had the same supervisor as Petitioner at the time Petitioner received her Final Warning for the same offense. However, unlike Petitioner, Mr. Johnson did not receive a Final Warning for disconnecting the call.
On August 20, 2018, Petitioner sent an e-mail to Human Resources’ employee Logan Durham advising that the training verbally promised to Petitioner had not been provided. Petitioner also advised Mr. Durham that her request to listen to phone calls of highly escalated customers in an effort to better understand tone and effectively de-escalate customers had not been approved.
In a September 11, 2018, Zoom meeting with Tiffany Trevino of Human Resources, Petitioner made another request to listen to highly escalated calls to gain a better understanding of tone and how to de-escalate customers effectively. Petitioner had come prepared to the meeting with concerns to discuss. However, Ms. Trevino would not allow Petitioner to speak, and asked her not to read her notes. After the meeting, Petitioner e- mailed her notes to Ms. Trevino so that it was documented that Asurion had been made aware of her concerns.
Seven days following Petitioner’s conversation with Human Resources requesting that she be transferred to a less escalated team, an opportunity opened up in the Command Center. Specifically, on September 18, 2018, there was an opening on the SPT Team. This team is lower in escalations as the customers are rarely contacted, and agents only make recommendations of how to proceed with a claim.
Rather than transferring Petitioner to the now-available lower-stress position, Asurion added required qualifications it knew would render Petitioner ineligible for the position. Those requirements were that an agent could not be on any corrective action (Petitioner was on a final written
warning); the agent must work “brick and mortar” (Petitioner worked from home); and the agent must be performing well in quality metrics (the only area Petitioner needed improvement on was her quality metrics).
The OEM Team, which is another low stress team that communicates primarily via e-mail, was created around the same time. On September 24, 2018, an e-mail was sent from Supervisor Megan Bass advising of the creation of the team, however, Petitioner was not included on the e-mail.
In October 2018, Christina Oregon, another agent who had disconnected a customer call (requiring corporate involvement), was promoted to the SPT Team.
On November 14, 2018, and again on January 23, 2019, Petitioner made additional requests to Human Resources for permission to listen to
highly escalated calls in order to improve her de-escalation skills. In response to these requests, Petitioner was advised by Ms. Trevino that this request could not be considered training.
When Petitioner again asked about being transferred to a lower-stress team, Ms. Trevino advised Petitioner that she would have to apply for the position the same way people without a disability would have to. Ms. Trevino made this statement to Petitioner even though she knew Petitioner was ineligible due to the final written warning she had received.
In September of 2018, Petitioner sent in a task to be reviewed by the Audit Department. The claim was incorrectly worked by another agent, and had left a senior citizen without a working refrigerator for two weeks. Going against the company's best interest, as well as the customer’s, Supervisor Megan Bass retaliated against Petitioner, advising that the delayed process this agent took was in fact correct. Normally, when something is sent to the Audit Department, the claim is handled from there. It was not protocol to
send it back to the agent who sent it in. It was Petitioner’s responsibility to report any issues she observed with workflow, and Ms. Bass’s response to Petitioner’s legitimate concern with customer service served to further harass Petitioner.
Petitioner provided numerous examples of being ignored by her supervisors when requesting assistance with customer complaints and workflow concerns. In contrast, her colleagues were receiving immediate assistance from the leadership team in addressing their concerns. For example, on November 22, 2019, a customer Petitioner was working with requested to speak with a supervisor, but Petitioner was advised that none were available to assist. Throughout the duration of this claim, no supervisor called this customer back. Later, Petitioner was reprimanded for not offering the customer a gift card for his inconvenience. When Petitioner expressed her dismay about supervisors not returning calls to customers, she was again met with a reprimand for offering the customer a supervisor callback. Petitioner’s
actions were correct, and were consistent with the training she had received
on the company’s operating procedures.
The hostile working conditions described above resulted in Petitioner experiencing a debilitating panic attack, leaving work early, and visiting a hospital emergency room on November 26, 2019. This panic attack affected Petitioner’s ability to think clearly and function normally. Pursuant to
Asurion’s policy, Petitioner reported her absence from work to the
AbsenceOne system, from the emergency room. The AbsenceOne system
automatically notifies Asurion, including Petitioner’s supervisors, of absences via e-mail.
The following morning, with the panic attack continuing, Petitioner was able to collect herself enough to explain what had happened to her supervisor, TJ Mark. In response, Petitioner received a final written warning for not contacting her supervisor immediately upon her absence from work.
On April 28, 2020, Petitioner’s first day back from a week-long panic attack episode triggered by Asurion’s hostile work environment, Petitioner was terminated by Respondent for “not showing empathy” on a call. This is the area in which Petitioner had repeatedly requested additional training, or alternatively, reassignment to a lower escalated team which did not require direct customer contact. Petitioner had been belittled by this customer after issuing a denial for physical damage to his ice bucket. Per the service agreement, Asurion does not cover any failure caused by physical damage, intentional or otherwise, a result the customer was not willing to accept. Again, Petitioner’s actions on the call were consistent with her training, and were appropriate. As Petitioner credibly testified at hearing:
The customer was clearly argumentative and I kept repeating, have a nice day, as I did not want to argue with him about what I was trained to do. Due to the rationale provided, I felt that I had made the best decision under the circumstances. Honestly, I was going to be retaliated against no matter what route was taken. If I offered a
supervisor, I would have been in reprimand for offering a supervisor on a physically damaged ice bucket that did not affect the function of the ice maker.
Following her termination, an e-mail was sent out to all employees in the Command Center advising of Petitioner’s termination and reason for termination. As a result of this email, approximately 200 employees were
informed of the reason for Petitioner’s termination, which Asurion identified as “gross misconduct.” No other terminated Asurion employees were subjected to this form of public humiliation.
The evidence credibly established that Petitioner was subjected to a hostile work environment, was not provided the reasonable accommodation she requested, and was retaliated against for engaging in protected behavior.
CONCLUSIONS OF LAW
DOAH has jurisdiction over Petitioner’s claims pursuant to sections 120.57(1) and 760.11(7), Florida Statutes, to the extent Petitioner is alleging claims under the FCRA. DOAH does not have jurisdiction over Petitioner’s FMLA and defamation claims.
Disability Discrimination and Failure to Accommodate
The FCRA, section 760.01, et seq., prohibits employers from discriminating against employees on the basis of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. See
§ 760.10(1)(a), Fla. Stat. The FCRA also prohibits employers from retaliating against employees for engaging in activities protected under the FCRA. See
§ 760.10(7), Fla. Stat. The FCRA is patterned after federal anti- discrimination laws; therefore, federal case law construing these laws is applicable to claims under the FCRA. Fla. Dep’t of Cmty. Affs. v. Bryant, 586
So. 2d 1205, 1209 (Fla. Dist. Ct. App. 1991); Albra v. Advan, Inc., 490 F.3d 826, 834 (11th Cir. 2007).
Petitioner alleges Asurion intentionally retaliated, harassed, and discriminated against her on the basis of her disability. The burden is on Petitioner to prove these allegations. See Dep’t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996) (“The general rule is that a party asserting the affirmative of an issue has the
burden of presenting evidence to that issue.”); Fla. Dep’t of HRS, Div. of Health v. Career Serv. Comm’n of Dep’t of Admin., 289 So. 2d 412, 414 (Fla. 4th DCA 1974) (“[T]he burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal.”).
Specifically regarding disability discrimination, the FCRA is construed
in conformity with the Americans with Disabilities Act (“ADA”) found in 42
U.S.C. § 12101 et seq. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1175 (11th Cir. 2005) (citing Wimberly v. Secs. Tech. Grp., Inc., 866 So. 2d 146, 147 (Fla. 4th DCA 2004))(“Because Florida courts construe the FCRA in conformity with the ADA, a disability discrimination cause of action is analyzed under the ADA.”). See also Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007) (FCRA claims are analyzed under the same standards as the ADA.).
Employees may prove discrimination by direct, statistical, or circumstantial evidence. Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 22 (Fla. 3d DCA 2009). Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resorting to inference or presumption. Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997).
Petitioner did not present direct evidence of disability discrimination by Asurion. However, in the absence of direct or statistical evidence of discriminatory intent, Petitioner may rely on circumstantial evidence of disability discrimination to prove her case. For discrimination claims
involving circumstantial evidence, Florida courts follow the three-part, burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See also Valenzuela, 18 So. 3d at 21, 22; St. Louis v. Fla. Int’l Univ., 60 So. 3d 455, 458 (Fla. 3d DCA 2011).
Under the McDonnell Douglas framework, Petitioner bears the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802-04; see also Burke- Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006). Demonstrating a prima facie case is not “onerous,” but rather only requires Petitioner “to establish facts adequate to permit an inference of discrimination.” Holifield, 115 F.3d at 1562.
If Petitioner establishes a prima facie case of disability discrimination, she creates a presumption of discrimination. At that point, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for taking the adverse employment action. Valenzuela, 18 So. 3d at 22. The
reason for the employer’s decision should be clear, reasonably specific, and worthy of credence. Dep’t of Corr. v. Chandler, 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991). The employer has the burden of production, not persuasion, to demonstrate to the finder of fact that the decision was non-discriminatory.
See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). This burden of production is “exceedingly light.” Holifield, 115 F.3d at 1564. The employer only needs to produce evidence of a reason for its decision. It is not required to persuade the trier of fact that its decision was actually motivated by the reason given. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
If the employer meets its burden, the presumption of discrimination disappears. The burden then shifts back to the employee to prove that the employer’s proffered reason was not the true reason but merely a “pretext” for discrimination. See Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997); Valenzuela, 18 So. 3d at 25. In order to satisfy this final step of the process, the employee must “show[] directly that a discriminatory
reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief.” Chandler, 582 So. 2d at 1186 (citing Tex. Dep’t of Cmty. Aff. v. Burdine, 450
U.S. 248, 252-56 (1981)). The proffered explanation is “not worthy of belief” if the employee demonstrates “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Combs, 106 F.3d at 1538; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Petitioner “must prove that the reasons articulated were false and that the discrimination was the real reason” for Respondent’s actions. City of Miami v. Hervis, 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011)(citing St. Mary’s Honor Ctr., 509 U.S. at 515 (“[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real
reason.”))
Despite the shifting burdens of proof, “the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450
U.S. at 253; Valenzuela, 18 So. 3d at 22. In other words, regardless of whether a petitioner presents direct evidence or relies on the McDonnell Douglas presumption to establish a discrimination claim, the petitioner “always has the burden of demonstrating that, more probably than not, the employer took an adverse employment action against her on the basis of a protected personal characteristic.” Leme v. S. Baptist Hosp. of Fla., Inc., 248
F. Supp. 3d 1319 (M.D. Fla. 2017)(citing Wright v. Southland Corp., 187 F.3d 1287, 1292 (11th Cir. 1999)).
To state a prima facie claim for disability discrimination, Petitioner must show that: 1) she is disabled; 2) she was a “qualified individual”;
and 3) she was discriminated against because of her disability. See Lucas v.
W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); FrazierWhite v.
Gee, 818 F.3d 1249, 1255 (11th Cir. 2016); and 42 U.S.C. § 12112(a).
Petitioner is “qualified” if she, with or without a reasonable accommodation, can perform the essential functions and job requirements of the position she desires. Earl v. Meryns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). If Petitioner is unable to perform an essential function of the job, even with an accommodation, then, by definition, she is not a “qualified individual” and, therefore, not covered under the ADA. Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000).
Turning to the facts found in this matter, Petitioner proved a prima facie case of disability discrimination. Petitioner demonstrated that she is a “qualified individual.” Specifically, Petitioner established that she can perform an essential function of the Service Advisor position with a reasonable accommodation, which Asurion failed to provide.
The essential functions of a job “are the fundamental job duties of a position that an individual with a disability is actually required to perform.” Holly, 492 F.3d at 1257. Whether a function is “essential” is determined on a case-by-case basis. Id. In determining what functions are deemed essential, consideration shall be given to the employer’s judgment as to what functions of a job are essential and the employer’s written description for that job. Davis, 205 F.3d at 1305.
The evidence established that Petitioner was qualified and able to perform the essential functions of her job, as evidenced by her past success in the position, and the accolades she received for the quality of her work performance. However, after the unfortunate incidents which gave rise to her PTSD diagnosis, Petitioner requested a reasonable accommodation to reduce stress, thereby reducing the likelihood of a “triggering event,” which would prevent her from performing her duties.
The accommodations Petitioner requested were to have additional paid breaks during each shift, be transferred to a team that did not handle customer escalation calls, intermittent leave under the FMLA, and to listen
to calls of other agents de-escalating conversations with customers. In response to these requests, Asurion provided Petitioner with three unscheduled, unpaid breaks per day. Asurion also approved intermittent leave under the FMLA.
Asurion did not provide Petitioner with the reasonable accommodation which would have most improved her ability to perform her job duties. When requested as a reasonable accommodation of a disability, Asurion had the obligation to offer Petitioner reassignment to positions for which she qualifies, when such vacancies become available, without requiring her to search and apply for such positions. Instead, when Petitioner requested the reasonable accommodation of being transferred to a lower-stress team, she was treated as any other applicant would have been for the position, and was passed over for open positions in favor of other non-disabled applicants, which denied her the accommodation to which she was entitled. There was no credible evidence that providing this accommodation would have been a hardship for Asurion.
The law is clear that “[a]lthough transfer to a vacant position may be a
reasonable accommodation in certain circumstances; the employer does not need ‘to bump another employee from a position in order to accommodate a disabled employee.’” Spears v. Creel, 607 F. App’x 943, 948 (11th Cir. 2015) (citing Lucas, 257 F.3d at 1256). Asurion argues that it would have been an undue hardship for Asurion to transfer Petitioner to a vacant position if one was not available. While that may be true, the evidence established that at least two less-stressful positions became available during Petitioner’s
employment for which Petitioner was qualified, and that those positions were given to other individuals.
The evidence established that a vacancy opened which met Petitioner’s accommodation criteria (continuing to work from home and having generally less-stressful interactions) but that Asurion did not notifiy her of the position or give her the opportunity to accept it. Instead, Asurion told Petitioner that
she should have searched for the position, submitted her application, and become part of the general applicant pool in order to be considered. Moreover, Asurion added job qualification requirements that it knew Petitioner could not meet.
The evidence established that Asurion did not fulfill its obligation to Petitioner, because it failed to reasonably accommodate Petitioner by reassigning her based upon her disability.
At the final hearing, Petitioner rightfully expressed her extreme frustration that Asurion placed her on a final written warning for allegedly violating the company’s Attendance Policy, terminated her employment for allegedly violating its Customer Relations and Professional Behavior Policy, and held her accountable for her alleged, though unproven, substandard job performance. Petitioner’s credible testimony, and the evidence of record, established that the reasons given by Asurion for taking the above adverse employment actions were but a pretext for its discriminatory animus toward Petitioner.
Accordingly, Petitioner carried her ultimate burden of proving, by a preponderance of the evidence, that Asurion took an adverse employment action against her on the basis of her disability.
Retaliation
The ADA (and the FCRA) provides that no person shall discriminate against any individual because such individual has opposed an act or practice made unlawful by the ADA. See Stewart, 117 F.3d at 1287; see also 42 U.S.C.
§ 12203(a) and § 760.10(7), Fla. Stat. To establish a prima facie case of retaliation, Petitioner must demonstrate that: (1) she engaged in a statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211
(11th Cir. 2013); Webb-Edwards v. Orange Cty. Sheriff’s Off., 525 F.3d 1013, 1028 (11th Cir. 2008).
Retaliation claims under the FCRA use the same evidentiary framework as Title VII retaliation claims. Stewart, 117 F.3d at 1287; Harper
v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1389 (11th Cir. 1998). As such, Petitioner bears the ultimate burden of persuading the trier of fact that Asurion intentionally retaliated against her because she engaged a in protected activity. See Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
It is undisputed that Petitioner established the first two elements of a prima facie case: (1) she engaged in statutorily protected expression or conduct when she filed the two charges of discrimination and (2) she suffered an adverse employment action when she was terminated. However, Asurion contends that Petitioner’s case fails because she did not establish the third element, a causal connection between her engagement in the protected activity and the adverse employment action.
The U.S. Supreme Court established the causation standard for Title VII retaliation claims in University of Texas Southwest Medical Center v. Nassar. There, the Court held that “[t]he text, structure, and history of Title VII demonstrate that a [petitioner] making a retaliation claim under section 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Nassar, 570 U.S. at 365. “Title VII retaliation claims must be prove[n] according to traditional principles of but-for causation, not the lessened causation test” for status- based discrimination. Id. at 360.
Here, Petitioner established that she engaged in a protected activity, she was subjected to an adverse employment action, and there was a causal link between the protected activity and the adverse employment action. Retaliation occurs when an employer punishes an employee for engaging in a legally protected activity, and may include any negative job action, such as
demotion, discipline, firing, salary reduction, or unwanted job or shift reassignment. The evidence established that Petitioner was not provided with the reasonable accommodation (position transfer) which she repeatedly requested after she complained about being subjected to discriminatory treatment based upon her disability.
As noted, Petitioner filed three complaints with FCHR, including the Second Charge which was filed on October 8, 2019. It is significant that very shortly after the filing of the Second Charge, Petitioner was given her final written warning on December 3, 2019. While the mere fact of close temporal proximity between the protected activity and adverse action does not, in and of itself, establish the requisite causal link under McDonnell Douglas, here, given the totality and history of harassment endured by Petitioner, the temporal proximity of Petitioner’s firing and the filing of the Second Charge cannot be considered coincidental.
Ultimately, Petitioner was terminated by Asurion for “not showing empathy” on a call. This is the area in which Petitioner had repeatedly requested additional training, or alternatively, reassignment to a lower escalated team which did not require direct customer contact. As Petitioner testified at hearing, she was “set up for failure” when Asurion refused to provide her with the reasonable accommodations she had requested in order to perform her job duties.
The credible evidence of record established that Asurion discriminated against Petitioner based on her disability. Petitioner established that she was a “qualified individual” who could perform the essential functions of the
Service Advisor position with “reasonable” accommodations, which Asurion failed to provide. Petitioner further established that Asurion’s stated reason for issuing a final written warning on December 3, 2019, and terminating her employment on April 28, 2020, was pretextual, and that discrimination was the real reason motivating Asurion’s decisions.
Section 760.11(6), provides in relevant part:
If the administrative law judge, after the hearing, finds that a violation of the Florida Civil Rights Act of 1992 has occurred, the administrative law judge shall issue an appropriate recommended order in accordance with chapter 120 prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay.
The facts established that Petitioner suffered from PTSD, a condition that was exacerbated by the hostile work environment and discrimination by Asurion based upon her disability. As a result, Petitioner has incurred expenses for mental health counseling, for which Asurion should be held accountable. While the above-cited provision specifically authorizes the award of back pay, the affirmative relief that may be awarded by an ALJ is not limited to back pay, but rather includes “relief from the effects of the practice.” Here, the effects of the discriminatory practices visited upon Petitioner resulted in the exacerbation of her disability, for which she rightfully sought mental health counseling, and for which Asurion is responsible.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Annemarie Wolny’s Petition for Relief, as follows:
Finding that Respondent, Asurion, engaged in a discriminatory employment practice based on Petitioner’s disability;
Awarding Petitioner back pay from the date of termination; and
Awarding Petitioner reimbursement for mental health services incurred as a result of Asurion’s misconduct.
DONE AND ENTERED this 28th day of June, 2021, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
S
W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 28th day of June, 2021.
Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Annemarie Wolny W4598 County Road RR Random Lake, Wisconsin 53072 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 | Deadrick Thaxton Asurion Suite 300 648 Grassmere Park Nashville, Tennessee 37211 Casey M. Duhart, Esquire Waller Lansden Dortch & Davis, LLP Suite 2700 511 Union Street Nashville, Tennessee 37219 |
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 30, 2021 | Agency Final Order | |
| Jun. 28, 2021 | Recommended Order | Petitioner established that she was the victim of employment discrimination based upon disability, and that the reasons given by employer for termination were pretextual. |
