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Trautman v. Time Warner Cable Texas, LLC

United States District Court, W.D. Texas, Austin Division

December 1, 2017




         Before the Court are Defendants' Motion for Summary Judgment (Dkt. No. 22); Plaintiff's Response (Dkt. No. 27); Defendants' Reply (Dkt. No. 30); Plaintiff's Motion for Partial Summary Judgment (Dkt. No. 23); Defendant's Response (Dkt. No. 26); and Plaintiff's Reply (Dkt. No. 29).

         The undersigned submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.

         I. Background

         This is a disability discrimination and retaliation case alleging claims pursuant to the ADA and FMLA. Plaintiff Heather Trautman was employed as a Workforce Analyst for Time Warner Cable beginning in October of 2012, until her termination on April 9, 2015. (Dkt. No. 22, Ex. 1, Trautman Dep. at 33:22-25; 68:21-69:10). Initially, Trautman reported to Time Warner Cable's office in North Austin from 8:00 am to 5:00 pm each day. (Dkt. No. 22, Ex. 1, Trautman Dep. at 78:6-11). In June 2013, about eight months into her employment, Trautman requested an accommodation for a pregnancy-related medical condition. (Dkt. No. 22, Ex. 6, June 27, 2013 ADA Physician Cert.). Trautman requested a place to lie down during the work day in the event she became dizzy or experienced bleeding. Id. Time Warner determined Trautman's condition was not a disability under the ADA at the time, but provided Trautman with an area to lay down, if necessary, during her pregnancy. (Dkt. No. 22, Ex. 7, Resp. to Employee Accommodation Req.).

         During this same time period, Trautman alleges she experienced two panic attacks while driving in heavy traffic. (Dkt. No. 22, Ex. 1, Trautman Dep. at 11:23-12:24; 13:11-18). Trautman's obstetrician advised that she avoid driving in traffic and suggested she work from home. Id. at 16:20-17:6. Trautman's obstetrician prepared a note for Trautman to present to her then-supervisor, Brian Kingery, regarding the requested temporary modification to her work hours:


Heather Trautman is an established patient in my obstetrical practice. Her estimated date of delivery is 12/28/13. Please allow her to leave work early for traffic issues and finish her work day from home.

         (Dkt. No. 22, Ex. 8, Sept. 25, 2015 Doctor's Note). Because of this recommendation from her doctor, from August 2013 to December 2013 (when her daughter was born), Time Warner allowed Trautman to work a modified schedule where she left work at 2:00 p.m., and then worked from home a portion of the afternoon or evening. (Dkt. No. 22, Ex. 1, Trautman Dep. at 17:7-18:13; 97:5-13).

         Following the December 2013 birth of her daughter, Trautman requested and received twelve weeks of FMLA leave. Id. at 110:16-111:2. In March 2014, Trautman's pregnancy-related FMLA leave expired. (Dkt. No. 22, Ex. 1, Trautman Dep. at 111:22-112:2). When the time came for Trautman to return to work, Trautman approached her then-manager, Christopher Graham, and requested to work from home until her daughter could transition to a bottle. (Dkt. No. 22, Ex. 1, Trautman Dep. at 112:22-113:3). The transition to the bottle took nine months and Trautman worked from home from March 2014 to January 2015, which is after her daughter's first birthday. Id. at 113:18-24.

         In October 2014, Adrienne Greth became Trautman's manager. (Dkt. No. 22, Ex. 1, Trautman Dep. at 115:14-19; Ex. 4, Greth Dep. at 11:1-12:5). Greth initially reached out to determine why Trautman worked from home and then asked that Trautman plan to return to work in the office in January 2015. (Dkt. No. 22, Ex. 1, Trautman Dep. at 115:20-118:2; Ex. 9, Greth Dec. 9, 2014 Email). Trautman requested permission to resume the 8:00 am to 2:00 pm modified schedule Kingery had previously granted during her pregnancy. Id. 127:1-128:1. Greth denied her modified schedule request for 2015. Id.

         On or around December 12, 2014, before the return to office work commenced, Trautman submitted a request for an ADA accommodation through Human Resources of a permanent modified schedule to either work from home or work a revised schedule from 7:00 a.m. to 2:00 p.m. (Dkt. No. 22, Ex. 10, Req. for Accommodation). Trautman's doctor certified that Trautman experienced “anxiety/panic attacks related to traffic/driving” and described her disability as the “inability to drive in heavy traffic.” Id. at 3-4. According to Trautman's December 12, 2014, request, her anxiety condition imposed “no limitations for the function of [her] job duties.” Id. at 6.

         On January 9, 2015, Time Warner denied the request for accommodation. (Dkt. No. 27, Ex. 6). Greth determined it was not feasible to provide Trautman with a permanent work-from home accommodation because the essential functions of Trautman's workforce analyst position required her to be present and available in the office during normal business hours. (Dkt. No. 22, Ex. 4, Greth Dep. at 100:11-104:12; Ex. 11, Req. for Accommodation; Ex. 12, Greth Accommodation Analysis Email). The denial letter stated that the reason for the denial was that “the request and accommodation are not related to an essential function of the employee's job.” The document further states that “Heather's position requires her to work from the office during normal business hours and is not a work from home position.” However, as an alternative, Time Warner offered Trautman a 7:00 a.m. to 4:00 p.m. schedule. Id.

         On January 14, 2015, after Trautman rejected Time Warner's alternative schedule, Trautman contacted Time Warner's third-party administrator (Sedgwick) to initiate a claim for intermittent FMLA leave. (Dkt No. 22, Ex. 1, Trautman Dep. at 172:17-173:15; Ex. 14, FMLA Eligibility Notice). Trautman's February 5, 2015, certification came in one day past the fifteen day deadline and contained incomplete information. (Dkt. No. 22, Ex. 16, Feb. 5, 2015 Cert.;Ex. 17, Feb. 5, 2015 Cert. Deficiency Ltr.; Ex. 1, Trautman Dep. at 174:4-175:16). Trautman's treating physician had failed to complete the frequency and duration section of the certification form so Sedgwick requested of Trautman: “Please also have the doctor answer question #7 and provide a frequency and duration for the flare-ups of your illness that may require you to miss time from work, if applicable.” (Dkt. No. 22, Ex. 17, Feb. 5, 2015 Cert. Deficiency Ltr.). On February 9, 2015, Trautman submitted an updated certification, which included check marks in response to Sedgwick's prompts for information related to the frequency and duration of her condition. (Dkt. No. 22, Ex. 18, Feb. 9, 2015 Updated Cert.). Sedgwick interpreted Dr. Hart's check marks and notations to certify Trautman for one episode per week, with each episode lasting up to one hour, and issued a certification reflecting approval of such. (Dkt. No. 22, Ex. 19, Feb. 20, 2015 FMLA Cert.). Sedgwick then issued a denial for Trautman's numerous absences between January 14, 2015 and February 20, 2015, that exceeded this one-hour-per-week certification. (Dkt. No. 22, Ex. 20, Feb. 20, 2015 Denial Ltr; Ex. 22, ViaOne Claim History).

         In January and February 2015, during the same time period that Trautman initiated her FMLA claim, she began to accrue numerous unexcused absences separate and apart from her FMLA-related absences. Trautman accrued nineteen unexcused, non-FMLA absences over a period of thirty-five work-days. (Dkt. No. 22, Ex. 21, Feb. 24, 2015 Written Warning). This included eighteen full-day absences as well as a six hour absence on January 20, a three hour absence on February 10, and numerous instances in which she left the office outside those times certified by her treating physician for purposes of her intermittent FMLA claim. (Dkt. No. 22, Appx. B). Four of these absences were accrued on January 5, 12, 13, and 14, 2015, before Trautman initiated her FMLA claim. Id. As of February 24, 2015, Trautman had accrued a total of 179 total hours of unexcused absences. On February 24, 2015, Greth issued Trautman a Written Warning for her unexcused absences. (Dkt. No.22, Ex. 21, Feb. 24, 2015 Written Warning). Before issuing Trautman any discipline related to her attendance, Greth reviewed the information in Sedgwick's ViaOne system to confirm that none of the absences included in the Written Warning were FMLA-approved. (Dkt. No. 22, Ex. 4, Greth Dep. at 33:13-18; Ex. 22, ViaOne Claim History). Trautman continued to accrue unexcused absences. On March 2, 2015, Greth issued a Final Written Warning to Trautman. This Final Written Warning stated:

On the afternoon of 2/24, you left unauthorized 2 hours prior to the end of the time that you are expected to be in the office. In addition, you called in sick Wednesday 2/25, Thursday 2/26 and Friday 2/27. This is a total of 22 days out of the office or 200 hours since the beginning of the year.

         (Dkt. No. 22, Ex. 23, March 2, 2015 Final Written Warning).

         On March 2, 2015, Trautman submitted another medical certification from her treating physician stating Trautman was certified to be absent from work for up to five episodes a week, with each episode lasting one hour and thirty minutes. (Dkt. No. 22, Ex. 24, Feb. 27, 2015 Cert).Sedgwick reviewed this second certification and subsequently approved Trautman for up to two hours a day, five days a week of leave, effective March 2, 2015. (Dkt. No. 22, Ex. 25, Mar. 20, 2015 Cert. Ltr.; Ex. 1, Trautman Dep. at 196:16-197:19 Ex. 26, ViaOne Claim Summary). The Response stated that“[w]e have reviewed your request for intermittent leave and have approved your leave under the Federal Family and Medical Leave Act (FMLA) from January 14, 2015 through August 27, 2015.” After the newly approved certification, Greth granted Trautman the following absence exceptions that were not approved FMLA time: Tuesday, March 24, 7:00 am to 1:00 pm work from home, 2:00 pm to 4:00 pm PTO; Friday, April 3, 1:00 pm to 4:00 pm leave early; and Monday, April 6, 7:00 am to 11:00 am sick, 12:00 pm to 4:00 pm work from home. (Dkt. No. 22, Ex. 26, Termination Form).

         On April 8, 2015, Trautman contacted Greth to advise that she would not be at work that day because her babysitter was sick. (Dkt. No. 22, Ex. 27, Termination Form). On April 9, 2015, Greth decided to end Trautman's employment for excessive absences. (Dkt. No. 22, Ex. 27, Termination Form; App. B, Absence Summary). Greth included in Trautman's termination form details of the unexcused absences she considered in making the decision to terminate Trautman. Id.

         II. Summary Judgment Standard

         Summary judgment is proper when the evidence shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Id. at 323. If the moving party meets this burden, the non-moving party must come forward with specific facts that establish the existence of a genuine issue for trial. ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). The function of summary judgment is to allow for parties to preempt litigation by demonstrating that “one or more of the essential elements of a claim or defense before the court is not in doubt and that, as a result, judgment should be entered on the basis of purely legal considerations.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). In deciding whether a fact issue exists, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving part, there is no ‘genuine issue for trial.' ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 389 (1968)).

         III. Analysis

         Trautman asserts two causes of action: (1) disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Texas Commission on Human Rights Act, Texas Labor Code § 21.001 et seq., for failing to accommodate her disability and for discharging her; and (2) violations of the Family and Medical Leave Act, 29 U.S.C. § 2612 et seq., for retaliating against Trautman and terminating her while she was on approved FMLA leave.

         A. ADA and Texas ...

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