United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
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.
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.
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.).
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
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.
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
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.
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
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.
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, Resp.to 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.
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).
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.
No. 22, Ex. 23, March 2, 2015 Final Written Warning).
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).
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.
Summary Judgment Standard
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
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)).
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.
ADA and Texas ...