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Flores v. AT&T Corp.

United States District Court, W.D. Texas, El Paso Division

November 6, 2019

AT&T CORP., Defendant.



         On this day, the Court considered Plaintiff Efraim Flores's ("Flores") "Second Motion for Partial Summary Judgment" ("Flores's Motion") filed in the above-captioned case on June 14, 2019. ECF No. 105. Defendant AT&T Corp. ("AT&T") filed a Response[1]("AT&T's Response") on July 3, 2019. ECF No. 126. On July 10, 2019, Flores filed his Reply ("Flores's Reply"). ECF No. 130-1.

         The Court also considered AT&T's "Amended Motion for Summary Judgment" ("AT&T's Motion") filed in the above-captioned case on June 17, 2019. ECF No. 108. Flores filed a Response ("Flores's Response") on June 25, 2019. ECF No. 114-1. On June 28, 2019, AT&T filed its Reply ("AT&T's Reply"). ECF No. 116.

         After due consideration, the Court is of the opinion that AT&T's Motion and Flores's Motion shall both be denied for the reasons that follow.


         This case stems from Flores's invocation of rights under the Family and Medical Leave Act ("the FMLA"), 29 U.S.C. § 2601 et seq. Flores was employed as an Account Representative by AT&T at a call center in El Paso, Texas. AT&T's Mot. 2, ECF No. 108; Pl's Original Pet. and Req. for Disclosure 2, ECF No. 1 -2 ("Flores's Original Pet."). Flores reported to Sales Coach Juan "Tony" Alvarez ("Alvarez") and Center Sales Manager Fernando Jacquez ("Jacquez"). AT&T's Mot. 2-3, ECF No. 108. While employed with AT&T, Flores was granted leave by AT&T under the FMLA for hypertension in 2015 and 2016. AT&T's Mot. 3, ECF No. 108. Between September 15, 2015, and October 2, 2015, Flores was also granted leave by AT&T under the FMLA for back abscesses. AT&T's Mot. 3, ECF No. 108; Flores's Original Pet. 2, ECF No. 1-2.

         Flores was terminated by AT&T on April 21, 2016. AT&T's Mot. 15, ECF No. 108; Flores's Original Pet. 3, ECF No. 1 -2. Flores alleges that AT&T "[chose] not to modify its performance policies to account for FMLA protected absences" and then "terminat[ed] his employment based on these unadjusted performance standards." Flores's Mot. 10-11, 14, ECF No. 105 (emphasis added). Flores asserts that evaluating him with unadjusted performance targets is an FMLA violation. Id. at 3-7. AT&T alleges that Flores was terminated after two warnings for missing performance targets and then "fail[ing] to meet 100% of his adjusted performance objectives/targets in March 2016." AT&T's Mot. 14-15, ECF No. 108 (emphasis added).

         On August 9, 2017, Flores filed his Original Petition in the 120th Judicial Court of El Paso County, Texas. Flores's Original Pet., ECF No. 1-2. Therein, Flores claims that AT&T violated the FMLA. Id. On October 19, 2017, AT&T filed a Notice of Removal, as Flores's cause of action presents a federal question. Def.'s Notice of Removal 2, ECF No. 1. The instant Motions followed.

         1. Flores's Factual Allegations

         Flores alleges that AT&T terminated him after he failed to meet performance targets that were not adjusted to account for the FMLA leave he took. Flores's Mot. 10-11, 14, ECF No. 105. Flores alleges that "[t]he only documents showing the targets [ ] AT&T sets for [ ] Flores are the daily, weekly, and monthly reports, [2] and they do not reflect any adjustments [to account for FMLA protected leave]." Pl's Resp. to Def. AT&T Corp.'s Obj. to Pl's Summ. J. Evid. 5, ECF No. 131 (footnote added). In support of this claim, Flores points to the deposition of Lisa Robinson ("Robinson"), an AT&T Employee Relations Manager, who oversaw the human resources managers at Flores's call center. Flores's Resp. 12-13, ECF No. 114-1. In the deposition, Robinson affirmed that "all of those employees under [ ] Jacquez, who are under the same contract [as Flores], were held to the same performance standards, ... whether or not they had taken FMLA leave." Robinson Dep. 18:23-19:5, ECF No. 114-3.

         Flores also claims that AT&T "penalizes employees for taking medical leave when it refuses to adjust employees' performance targets and goals to take into account employees' absences which are protected under the FMLA." Flores's Mot. 10-11, 14, ECF No. 105 (citing Aff. of Graciela Varela, ECF No. 105-3; Aff. of Luis Velez, ECF No. 105-5). In support of this claim, Flores provides the sworn affidavit of Luis Velez ("Velez"), a former Retention Manager at AT&T. Aff. of Velez 2, ECF No. 105-5. According to Velez's sworn statement, "if the employee was on medical and/or disability leave[, ] the performance metric percentages and targets were not adjusted and the employee was expected to meet the performance metrics and targets ..." Id. at 3. By not adjusting performance targets, "AT&T penalized these employees for taking medical leave and/or disability leave because the employee[s'] [MTD] performance/percentage targets were negatively affected, which negatively affected their monthly and yearly performance metric targets..." Id. at 3. The unadjusted performance metrics were then used to "progress [employees] through the steps of discipline for termination as quickly as possible." Id. at 3.

         Flores also provided a sworn affidavit from Graciela Varela ("Varela"), formerly a Senior Office Clerk at AT&T, who created EOD and MTD reports for various supervisors at AT&T. Aff. of Varela 2-3, ECF No. 105-3. According to Varela's affidavit, "never did... anyone at AT&T tell me to adjust the targets for an employee who was on FMLA leave." Id. at 2 (emphasis in original). Varela added that "AT&T would [not] adjust the employee's targets or goals to reflect FMLA or disability protected absences yet still require[d] these employees to perform as if they had [ ] 100% attendance." Id. (emphasis in original). Instead, the employee performance targets contained in the reports she prepared were only adjusted when an employee was on long-term disability leave which would only start after an employee had been out for eight consecutive days. Id.

         Additionally, Flores alleges that AT&T Manager Cecilia Lezama ("Lezama") intimidated and pressured him whenever he called to take FMLA leave. Flores's Mot. 10, 14, ECF No. 105. Flores claims Lezama's treatment toward him prevented him from taking FMLA leave. Id.

         Finally, Flores argues that even if AT&T does adjust performance targets to account for FMLA leave, his February 22, 2016, absence was misclassified as absence for "iliness" rather than FMLA-protected leave. Flores's Resp. 4, ECF No. 114-1. As a result, AT&T did not adjust Flores's performance targets for that absence, thus, penalizing him for taking leave under the FMLA. Id. at 5-6.

         2. AT&T's Factual Allegations

         AT&T distinguishes between two types of data, "Issued" and "Posted Data," maintained about each Account Representative's performance. AT&T's Resp. 3, ECF No. 126. Only "Posted Data" was used in the decision to terminate Flores. Id. at 5. "Issued Data" provides a temporary "snapshot" of the initial sales data of an Account Representative. Id. at 3. (citing Johnny Soliz Decl. ¶ 4, ECF No. 31-1; Jennifer Morales Decl. ¶ 4, ECF No. 31-2). The Issued Data is incorporated into EOD and MTD reports. Id. The EOD and MTD reports and the underlying Issued Data were not used to discipline or terminate Flores because they "did not reflect the final sales data or [P]osted [D]ata." Id. at 4. According to Johnny Soliz ("Soliz"), the General Manager for AT&T at Flores's call center, "[t]he purpose of the temporary EOD reports was to give [him], the Center Sales Managers[, ] and the Sales Coaches an idea of how the sales were trending on any given day in order to provide daily feedback to Account Representatives and roughly [give] daily sales trends." Soliz Decl. ¶ 1, 5, ECF No. 31 -1.

         In contrast, "Posted Data" reflects "final sales amounts... which reflected sales that actually closed." AT&T's Resp. 3, ECF No. 126. According to Soliz, Issued Data could differ from Posted Data because "initial sales order[s] were often reduced or cancelled before they became final for many reasons (e.g., order was cancelled, a chargeback occurred, installation problems delayed the sale, etc.) and the temporary EOD reports did not reflect this information." Soliz Decl. ¶ 5, ECF No. 31-1.

         The Posted Data was reflected in an employee's "Scorecard." AT&T's Resp. 4, ECF No. 126. As part of the Scorecard's preparation, the total number of call minutes for an Account Representative was adjusted to reflect the protected FMLA leave taken thereby producing the "Total Adjusted Minutes." AT&T's Mot. 9, ECF No. 108. The Total Adjusted Minutes were then used and applied to performance objectives in the Scorecard "to ensure that the objectives were appropriately reduced to account for the Account Representative's protected leave time." Id. "Once those objectives were adjusted, the Account Representative's performance was then measured on his or her ability to meet the adjusted objective for the month." Id. at 10. The Scorecards were electronically generated by a computer program. Id. at 6. Flores's managers at AT&T-Alvarez, Jacquez, and Soliz-did not play a role in preparing Flores's Scorecard, and they could not change the data. Id.

         According to AT&T, "[t]he Scorecards alone served as a basis for disciplining and dismissing employees. No other reports served as a basis for disciplining or dismissing employees. Neither EOD nor MTD data was considered for purposes of generating Scorecard results. Scorecards were only generated based on '[P]osted' [D]ata after the close of the month." AT&T's Resp. 5, ECF No. 126. AT&T claims that Flores's monthly Scorecards were adjusted according to the process described above. AT&T's Mot. 10-13, ECF No. 108. After Alvarez and Jacquez issued two warnings for failing to meet adjusted performance objectives, Flores again missed his adjusted performance objectives in March 2016. Id. at 14-15. Jacquez then recommended to Soliz that Flores be dismissed, and Soliz approved the request, dismissing Flores on April 21, 2016. Id.

         Additionally, AT&T asserts that Lezama "played no role in approving or denying Flores's FMLA leave request." AT&T's Resp. 2-3, ECF No. 126. She merely coded the stated reason for the absence and notified another department of the request. Id.

         Finally, AT&T alleges that Flores did not provide medical certification for his February 22, 2016, absence and is, thus, not entitled to FMLA leave for that absence. Id. at 17-19.


         Flores and AT&T have each filed a motion for summary judgment. "The court shall grant summary judgment if the movant 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). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record ..." Fed.R.Civ.P. 56(c)(1). "[T]he plain language of Rule 56[ ] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         "Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact." Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citing Celotex, 477 U.S. at 323). Where the burden of proof lies with the nonmoving party, the moving party may satisfy its initial burden by "'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving parry's case." Celotex, 477 U.S. at 325. While the moving party "must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case." Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010).

         A fact is "material" only if it would permit "a reasonable jury ... [to] return a verdict for the nonmoving party" and "might affect the outcome of the suit." Douglass v. United Servs. Auto. Ass'n, 65 F.3d 452, 458-59 (5th Cir. 1995), aff'd en banc, 79 F.3d 1415 (5th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986)). "If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant's response." Duffie, 600 F.3d at 371 (internal quotation marks omitted).

         "When the moving party has met its Rule 56[ ] burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings." Id. The nonmovant "must identify specific evidence in the record and articulate [how] that evidence supports that party's claim." Id. "This burden is not satisfied with 'some metaphysical doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,' or by 'only a "scintilla" of evidence.'" Id. (quoting Little v. Liquid Air Corp.,37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). "In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party." Id. (citing Liberty Lobby, 477 U.S. at 255). However, "[credibility ...

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