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Chavez v. State

United States District Court, D. Colorado

March 24, 2017



          RAYMOND P MOORE United States District Judge.

         On July 27, 2015, Plaintiff Theresa Chavez ("plaintiff) filed a Complaint against Defendants the State of Colorado Department of Education ("the CDE"), Colleen O'Neil ("O'Neil, " and with the CDE, "defendants"), Jill Hawley ("Hawley"), and Norma Lawanson ("Lawanson"), asserting the following six claims for relief: (1) religious discrimination, hostile work environment, and retaliation against the CDE in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"); (2) disability discrimination, hostile work environment, interference, and retaliation against the CDE in violation of the Rehabilitation Act of 1973; (3) under 42 U.S.C. § 1983, violation of the Establishment and Free Exercise Clauses of the First Amendment to the U.S. Constitution against Lawanson, O'Neil, and Hawley; (4) violation of the Family Medical Leave Act ("the FMLA") against O'Neil; (5) coercion against Lawanson; and (6) breach of a settlement agreement against the CDE. (ECF No. 1.)

         After the filing of motions to dismiss (ECF Nos. 22, 25), the Court dismissed all claims against Lawanson and Hawley, and dismissed the claims under § 1983 against O'Neil (ECF No. 75). The Court also denied without prejudice O'Neil's motion to dismiss with respect to the FMLA claim. (ECF No. 75.)

         Currently pending before the Court is defendants' motion for summary judgment (“the motion”) (ECF No. 72), pursuant to which defendants seek summary judgment as to all remaining claims. Plaintiff has filed a response (ECF No. 85), and defendants have filed a reply (ECF No. 90.)

         I. Legal Standard

         Summary judgment is appropriate “when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Initially, the movant bears the “responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If this burden is met, then the non-moving party must set forth specific facts showing that there is a genuine dispute for trial. Id. at 324. A fact is material if it has the potential to affect the outcome of a dispute under applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is genuine if a rational trier of fact could find for the non-moving party. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).

         In performing this analysis, the factual record and any reasonable inferences therefrom are construed in the light most favorable to the non-moving party. Id. However, a mere “scintilla of evidence” is insufficient to avoid summary judgment. Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1142 (10th Cir. 2009). Instead, a non-movant “must proffer facts such that a reasonable jury could find in her favor.” Id.

         II. Factual Background

         As an initial matter, the Court addresses one of the frequent objections plaintiff raises with respect to certain facts in defendants' initial statement of uncontested material facts: “[t]he evidence relied on in support of this fact does not meet the standards required by [Fed.R.Civ.P.] 56.” (See, e.g., ECF No. 85-1 at ¶ 1-5.) Plaintiff cites to Fed.R.Civ.P. 56 (“Rule 56”), subsection (e), which she contends states, inter alia, that affidavits must be made on personal knowledge and set out facts that would be admissible in evidence. (Id. at ¶ 1.) Plaintiff also cites a case, which states that a court may disregard facts supported only by references to documents unless the document has been authenticated by an affidavit. (Id.)

         The problem for plaintiff is that she is citing to an old version of Rule 56(e). Rule 56(e) was amended as of December 2010, and now pertains to the consequences of failing to properly support or address a fact. See Fed.R.Civ.P. 56(e) (2010). The pertinent provision for the objection plaintiff raises is now Rule 56(c)(2). That provision pertains to when an objection is made that a fact is not supported by admissible evidence, and states, simply, that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” See Fed.R.Civ.P. 56(c)(2) (2010). Plaintiff does not raise that objection to the evidence relied upon by defendants; plaintiff's sole objection is that the evidence has not been authenticated by way of an affidavit. That, however, is not a requirement under Rule 56; the only requirement is that the evidence be presented in an admissible form. See Alfonso v. SSC Pueblo Belmont Operating Co., LLC, 2012 WL 2863128, at *1-2 (D. Colo. July 11, 2012) (explaining the changes caused to Rule 56 by amendments in 2010, and rejecting a party's authentication argument where a sufficient method had been proposed by which an exhibit might be admitted at trial).

         Here, the Court can discern no reason why the evidence in question is not in an admissible form, especially given that, except in one instance, defendants have subsequently filed affidavits substantiating the evidence. See id.; see, e.g., ECF No. 90-1 at ¶¶ 10-15; ECF No. 90-10 at ¶¶ 13-15; ECF No. 90-15 at ¶¶ 9-12.) Based upon the Court's review of defendants' affidavits, the one example of evidence not authenticated by the same are the emails related to the alleged settlement agreement between the parties. However, the Court has no problem believing that those emails are in admissible form, given that the email exchange is between counsel for CDE and plaintiff's current counsel. It should be little problem for the parties to stipulate or for CDE to present a witness to testify as to whether or not Exhibit Z (ECF No. 72-28) does, in fact, represent the actual email exchange between counsel, especially given that plaintiff does not argue that Exhibit Z does not, in fact, represent the exchange. (See ECF No. 91-1 at ¶ 60; ECF No. 85 at 40.)

         As a result, the Court rejects plaintiff's objections premised on an out-dated version of Rule 56, and, to the extent no other objection is raised, considers defendants' proposed facts, that plaintiff challenges on that out-dated basis, as uncontested for purposes of the motion. See Fed.R.Civ.P. 56(e)(2).

         With that in mind, the following factual background is drawn from the parties' statements of fact.[1]

         In February 2009, CDE hired plaintiff to work in the Educator Licensing Unit as an Administrative Assistant III. (ECF No. 91-1 at ¶ 1.) Work in the Educator Licensing Unit includes implementation and compliance oversight for educator licensing programs in Colorado. (Id. at ¶ 2.) On March 13, 2009, plaintiff signed a Position Description Questionnaire that detailed the duties of her role in the Educator Licensing Unit. (Id. at ¶ 3.) Plaintiff was also assigned various roles that were not specifically identified in the Position Description Questionnaire. (Id. at ¶ 1(AF).)[2] Plaintiff was tasked with assisting clients with the licensure application process and processing licensure applications. (Id. at ¶ 4.) Seventy percent of plaintiff's job was centered around customer service. (Id. at ¶ 5.)

         Between 2009 and 2012, CDE assigned plaintiff to assist Lawanson, a supervisor of the evaluator team. (ECF No. 91-1 at ¶ 11.)[3] At times, Lawanson was a supervisor of the evaluators, and, at times, plaintiff's supervisor. Lawanson remained plaintiff's direct supervisor through approximately July 2013. (Id.) Lawanson also remained in plaintiff's supervisor chain until January 2014, which, in part, meant that Lawanson supervised plaintiff when plaintiff's direct supervisor was absent. (Id; ECF No. 72-33 at 2; ECF No. 85-2 at ¶ 8.) While working for Lawanson, plaintiff expressed an interest in becoming an evaluator after Lawanson indicated that she would train plaintiff to become an evaluator. (ECF No. 91-1 at ¶ 13.) Lawanson allowed plaintiff to perform evaluator tasks. (Id. at ¶ 14.) Plaintiff's evaluator duties included evaluating applications for one- year substitute licenses and processing three-year substitute authorizations. Lawanson rated plaintiff favorably on all evaluator duties. (Id.)

         In 2009, plaintiff received a negative performance review. (ECF No. 91-1 at ¶ 6.) More specifically, on August 10, 2009, plaintiff received a document reflecting her poor performance of data entry, being rude to clients, and providing inaccurate information to clients. (Id. at ¶ 7.) In September 2009, plaintiff received a “Needs Improvement” rating, and failed her Core Competencies Inventory on her employee performance evaluation form. (Id. at ¶ 8.) From 2010 through March 2013, plaintiff received favorable performance reviews. (Id. at ¶ 6.) More specifically, Lawanson rated plaintiff as “Fully Competent” in her November 2011 to March 2012 performance rating (id. at ¶ 3(AF)), and plaintiff received an overall rating of “Meets Expectations” for her performance from April 2012 to March 2013 (ECF No. 85-5 at 7-8).[4] The 2012-2013 performance review was signed by Lawanson and Dr. Jami Goetz (“Goetz”), the Executive Director of the Educator Licensing Unit. (Id. at 2; see also ECF No. 91-1 at ¶ 6.) In plaintiff's April 2013 to March 2014 performance review, she received an overall rating of “Needs Development.” (ECF No. 72-44 at 10.)

         On January 19, 2010, CDE approved plaintiff's FMLA request for intermittent abdominal pain. (ECF No. 91-1 at ¶ 9.) On September 20, 2010, CDE approved a FMLA request from plaintiff. (Id. at ¶ 10.) On February 27, 2012, and July 26, 2012, CDE approved further FMLA requests from plaintiff. (Id. at ¶¶ 15, 25.)

         On February 8, 2013, plaintiff's doctor diagnosed her with thyroid cancer. (Id. at ¶ 35.) On March 13, 2013, plaintiff had a complete thyroidectomy to remove the cancer. (Id. at ¶ 36.) Plaintiff returned to work in the first week of April 2013. (Id. at ¶ 37.) After returning to work, plaintiff no longer wanted to be involved in Lawanson's church or church related activities, and no longer wanted to attend Bible studies at work. (Id. at ¶ 10(AF).) At some point, Lawanson expressed her disapproval. (Id. at ¶ 11(AF).)[5] Lawanson became angry with plaintiff, and withdrew her support for plaintiff. (Id. at ¶ 12(AF).) Lawanson also told co-workers not to speak with plaintiff. (Id.) Lawanson still pressured plaintiff to attend Bible study and other church related functions. (Id. at ¶ 13(AF).) The day after plaintiff failed to attend the first session of a church sponsored parenting class, Lawanson called plaintiff a “hypocrite” and told her that she needed to “realize who is number one, God, not your family.” (Id. at ¶ 14-15 (AF).)

         At some point in 2013, CDE decided to move plaintiff to the Customer Service Center to answer phones. (ECF No. 91-1 at ¶¶ 38, 13(AF).)[6] Plaintiff was not added to the Avaya phone system until after May 30, 2013. (Id. at ¶ 17(AF).) Soon after the move, plaintiff complained that Lawanson retaliated against plaintiff because she was no longer attending religious activities with Lawanson. (Id. at ¶ 39.)[7] Goetz told Lawanson to discontinue Bible studies, and Lawanson cancelled the same. (Id. at ¶¶ 44-45.)[8] Lawanson also limited her interactions with plaintiff, and their friendship deteriorated. (Id. at ¶¶ 47-48.)

         On June 10, 2013, plaintiff's doctor submitted a Fitness to Return Certification, limiting plaintiff's telephone work to two-three hours per day, non-consecutively. (Id. at ¶ 49.) The doctor's certification was to end on December 10, 2013. (Id.) On June 17, 2013, CDE approved plaintiff's FMLA request for severe abdominal pain. (Id. at ¶ 50.)

         On June 5, 2013, plaintiff met with Goetz, and complained about Lawanson's Bible studies. (Id. at ¶ 19(AF).) On June 10, 2013, Lawanson circulated a telephone schedule that had plaintiff on the telephone from 8:30 a.m. to 4:00 p.m. (ECF No. 85-12 at 3.) On the same day, plaintiff complained to Goetz about the schedule, saying that she felt Lawanson was retaliating against her. (ECF No. 91-1 at ¶ 21.) On June 11, 2013, Lawanson sent an email with changes to the telephone schedule. (ECF No. 72-16 at 24.) A chart attached to the email, containing the schedule, was not changed though (id. at 25), and Lawanson could not recall which schedule was followed (ECF No. 90-10 at ¶ 11). On June 12, 2013, Lawanson sent out another phone schedule, placing plaintiff on the telephone from: 8:30 a.m. to 9:30 a.m. on Wednesday, and 8:30 a.m. until 10:00 a.m. the rest of the work week; 11:30 a.m. to 1:00 p.m. on Wednesday, and 11:00 a.m. to 1:00 p.m. the rest of the work week; and 2:00 p.m. to 3:00 p.m. on Wednesday, and 2:30 p.m. to 4:00 p.m. the rest of the work week. (ECF No. 85-14 at 2-6.)[9]

         On July 11, 2013, plaintiff complained to human resources about the lack of compliance with her medical restrictions. (Id. at ¶ 25(AF).) Human resources responded that they would need a completed medical certification form from plaintiff's doctor with respect to her thyroid condition if she wanted to take time off for that condition. (Id.) A day later, human resources also responded that the medical certification they had did not put any restrictions on plaintiff's ability to perform her job. (Id. at ¶ 26(AF).) Plaintiff complained three times during a five-month period that CDE did not comply with her medical restrictions. (Id. at ¶ 27(AF).) Plaintiff was “emotionally and physically traumatized” by CDE's actions in scheduling her on the phone in excess of her medical restrictions, which “aggravated” her surgery site. (ECF No. 85-2 at ¶ 32.)[10]

         On July 15, 2013, plaintiff met with Hawley, and stated that she was being treated unfairly because she had complained about Lawanson's Bible studies. (ECF No. 91-1 at ¶¶ 51-52.) As a result, Hawley determined that plaintiff should have a new supervisor, Chris Lee (“Lee”). (Id. at ¶ 54.)

         In late July 2013, plaintiff allegedly left confidential, unsecured information in the office. (Id. at ¶ 55.)[11] As a result, plaintiff received a Corrective Action on August 1, 2013. (Id.) Plaintiff appealed the Corrective Action, and, on August 23, 2013, Hawley changed the Corrective Action to a written warning. (Id. at ¶ 56-57.)[12]

         On August 12, 2013, Lawanson received a complaint from a customer, which indicated that the complaint was about a woman. (Id. at ¶ 29(AF).) Lawanson sent an email to Klein, stating “[l]et the fun begin … the only woman on the phones this morning was [plaintiff].” (Id.) On August 13, 2013, plaintiff complained about being retaliated against by Lawanson's behavior concerning religion. (Id. at ¶ 30(AF).) Plaintiff further complained that the Corrective Action issued on August 1, 2013 was “issued as a means to start the path to [her] termination.” (Id.; ECF No. 85-19 at 2.)

         On August 14, 2013, plaintiff filed a formal grievance against Lawanson and Lee, alleging discrimination, retaliation, and harassment. (Id. at ¶ 59.) Plaintiff further complained about her telephone schedule, stating that she wanted to stop answering telephones “all day long, ” and she could not do so for more than a few hours per day or for consecutive hours. (Id. at ¶ 31(AF).) Settlement negotiations with respect to the grievance began in February 2014. (Id. at ¶ 60.)[13] On September 12, 2013, plaintiff filed her first charge with the Equal Employment Opportunity Commission (“EEOC”), alleging retaliation, age discrimination, disability discrimination, and religious discrimination. (Id. at ¶ 62.) Plaintiff attached the formal grievance filed against Lawanson and Lee to her EEOC charge. (Id. at ¶ 63.) In responding to plaintiff's charge of discrimination, CDE responded that its failure to follow plaintiff's medical restriction was “in error.” (Id. at ¶ 34(AF).)

         In August 2013, Tanya Klein (“Klein”) became plaintiff's supervisor. (Id. at ¶ 67.) Klein did not participate in or know about the Bible studies until after they ended. (Id. at ¶ 68.) On October 24, 2013, Klein sent an email revising plaintiff's telephone schedule, stating that her prior understanding of plaintiff's restrictions was “incorrect” and that she now understood plaintiff as being restricted to 2-3 non-consecutive hours of telephone duties per day. (Id. at ¶ 33(AF).)

         Toward the end of November 2013, Klein, who was out of the office, sent an email, directing plaintiff to “sit at the desk across from Michael so that you can overhear what's going on and assist with walk ins.” (ECF No. 72-30 at 2.)[14] On December 3, 2013, plaintiff wrote a complaint to Wendi Kispert (“Kispert”), the Human Resources Director, stating that Lawanson and Klein were harassing and retaliating against her. (Id. at 7-9.) In January 2014, Lawanson resigned from CDE. (ECF No. 91-1 at ¶ 80.)

         On December 6, 2013, plaintiff's doctor sent a medical certification to CDE related to a chemical imbalance in plaintiff's brain nerves. (ECF No. 91-1 at ¶ 75.) On December 9, 2013, CDE approved a FMLA request related to the same. (Id.; ECF No. 72-31 at 1.)

         In December 2013, O'Neil took over the role of Executive Director. (Id. at ¶ 76.) On December 23, 2013, [15] plaintiff met with O'Neil and Klein to address plaintiff's incident report about Klein's email, plaintiff's FMLA and work restrictions, plaintiff's job duties, plaintiff's October 10, 2013 Performance Management and Growth Plan, and work space requests made by plaintiff's doctor. (Id. at ¶ 78.)[16]

         In December 2013, O'Neil heard that customers were complaining about excessive wait times, and O'Neil started to look into the problem. (Id. at ¶ 35(AF).) Beginning in mid to late February 2014, O'Neil heard from employees that customers were frustrated with the call center, and that customers would wait “quite a while on the phone and then be disconnected.” (Id. at ¶ 36(AF).) CDE investigated the issue, working with Avaya for about two months. (Id. at ¶¶ 36, 42(AF).) In February 2014, O'Neil knew that Justin McGrew (“McGrew”), Michael Logan, Joyce Grange (“Grange”), and plaintiff were all reporting customer frustration. (Id. at ¶ 37(AF).) O'Neil was aware of various concerns, including wait time, being disconnected, and customers not getting the right answers. (Id. at ¶ 41(AF); ECF No. 85-10 at 31:8-16.) O'Neil's conversations with customer service staff concerned customers being disconnected. (Id. at ¶ 42(AF).) In March 2014, the telephone problems were ongoing, but O'Neil had not found any of the problems to be associated with any particular employee. (Id. at ¶ 43; ECF No. 85-10 at 44:4-20.)[17] After March 2014, CDE added additional customer service employees, Emma Craighead (“Craighead”) and Sabrina Perkins, who also reported customer complaints. (Id. at ¶ 40(AF).)

         On January 7, 2014, CDE's Human Resources emailed plaintiff, and told her that leave from December 3 to December 6, 2013 would not be covered under the FMLA, and that “[f]or any FMLA related illness, a reason must be specified to be covered under FMLA.” (ECF No. 72-34 at 1.) In early March 2014, plaintiff told O'Neil that she would not provide information concerning the specific medical condition to which her FMLA leave was related because, according to human resources, she was not required to do so. (ECF No. 85-2 at ¶ 46.)[18]

         At some point in early 2014, plaintiff was late to work without notifying her direct supervisor Klein or O'Neil. (ECF No. 72-35 at 2.)[19] O'Neil did not refuse to approve any of plaintiff's absences. (Id. at ¶ 84.)

         Plaintiff did not receive any disciplinary actions between December 2, 2013 and March 10, 2014. (ECF No. 91-1 at ¶ 85.) However, on March 6, 2014, Darrin Bacca (“Bacca”), a customer service representative, sent an email to O'Neil regarding plaintiff's errors when uploading documents for teacher licenses. (Id. at ¶ 86; ECF No. 72-36 at 1.) O'Neil asked Bacca to identify problems with plaintiff's performance; something which, at any given time, O'Neil asked Bacca to do with all employees. (ECF No. 85-10 at 137:24-138:19.)

         Klein approved plaintiff's January 2014 time sheet. (ECF No. 91-1 at ¶ 48(AF).)[20] O'Neil evaluated plaintiff's time in and time out based on when plaintiff signed into her computer. (Id.)[21]On plaintiff's February 2014 time report, it states that plaintiff was ill due to stomach sickness on February 14 and February 27. (ECF No. 85-25 at 2.) On March 7, 2014, plaintiff and O'Neil reviewed plaintiff's time sheet. (ECF No. 91-1 at ¶ 50(AF).) On March 10, 2014, O'Neil submitted the time sheet on plaintiff's behalf. (Id.) On the same day, O'Neil gave plaintiff a Request for Action, outlining plaintiff's violation of the absence/tardy protocols and the errors she made with uploading and processing documents. (Id. at ¶ 87.) On March 14, 2014, O'Neil issued plaintiff a Corrective Action for falsifying her time sheets and failing to correctly use the “Avaya” phone system. (Id. at ¶ 88.)[22]

         O'Neil believed that the Request for Action and Corrective Action were necessary after several months of trying to get plaintiff to improve her performance to no avail. (ECF No. 72-32 at ¶ 14.)[23] Prior to the March 14, 2014 Corrective Action, plaintiff did not receive any “coaching, ” and there were no discussions about her improving her performance. (ECF No. 91-1 at ¶ 51.)[24] Klein could not recall telling plaintiff whether plaintiff was logging in or out of the Avaya system correctly. (Id. at ¶ 52.) Klein also did not go to plaintiff's desk and show her how to log in and out. (Id.) After a meeting on March 17, 2014, O'Neil sent plaintiff an email outlining their meeting, and offering to talk about additional support, training, or suggestions to assist plaintiff in being successful in her work duties. (ECF No. 91-1 at ¶ 90.) Plaintiff replied to the email 13 days later, saying “Thank you.” (Id. at ¶ 91.)

         Plaintiff wrote a letter, dated March 21, 2014, to O'Neil, responding to the Request for Action, and complaining of retaliation due to filing complaints and being susceptible to stress from a hostile work environment. (ECF No. 85-26 at 2-3.)[25] On March 24, 2014, plaintiff sent O'Neil a response to the March 14 Corrective Action, asserting that she was being retaliated against due to complaints she had made about former supervisors and CDE. (Id. at ¶ 92.) On the same day, plaintiff submitted an informal grievance to O'Neil. (Id. at ¶¶ 93, 55(AF).) The grievance complained of retaliation, harassment, and bullying from O'Neil and Klein due to plaintiff's complaint about former supervisors and CDE. (Id.) On April 2, 2014, O'Neil and Klein responded to the informal grievance. (Id. at ¶ 94.)[26] On the same day, plaintiff filed a Charge of Discrimination against the EEOC, alleging discrimination based on religion, disability, and retaliation from April 2013 through April 2014. (Id. at ¶ 95.) On April 6, 2014, plaintiff told CDE that she would continue her grievance. (ECF No. 85-2 at ¶ 53.)[27] At the end of April, O'Neil became aware of an investigation by the Colorado Civil Rights Division. (Id. at ¶ 57(AF).) On May 1, 2014, O'Neil was notified of plaintiff's formal complaint regarding harassment against her. (Id.)

         On April 14, 2014, CDE approved plaintiff's FMLA request related to her thyroid. (Id. at ¶ 98.)

         On April 27, 2014, O'Neil gave plaintiff her 2013-2014 Performance Management and Growth Plan, which had an overall rating of “Needs Development.” (ECF No. 91-1 at ¶ 99.) On the same day, O'Neil gave plaintiff a Corrective Action. (ECF No. 72-45 at 12.) In the Corrective Action, O'Neil stated that she expected plaintiff to, inter alia, correctly insert her signature line in emails, have less than one grammatical error per every two communications with customers, respond comprehensively to questions in emails, and, unless plaintiff was unable to resolve an issue by email, not ask customers to call her by telephone when the customer had sent an inquiry via email. (Id. at 12-13.)[28] In an email attached to the Corrective Action, as an example of plaintiff asking a customer to phone her in response to an email inquiry, plaintiff asks a customer to call her when, in a previous email, the customer had told plaintiff he was deaf. (Id. at 8-9.)[29] The Corrective Action stated that “if there are additional or consistent work duty performance concerns, I will consider taking further corrective and/or disciplinary action, up to and including termination.” (ECF No. 91-1 at ¶ 112(AF).) After receiving the Corrective Action and 2013-2014 Performance Plan, plaintiff sent Kispert a letter, alleging bullying and harassment from O'Neil. (Id. at ¶ 105.) On May 9, 2014, plaintiff submitted a response to her 2013-2014 Performance Plan, accusing O'Neil and Klein of harassment and retaliation. (Id. at ¶ 106.)

         During the Spring of 2014, plaintiff served as a back-up to the call center. (Id. at ¶ 45(AF).)[30]Plaintiff's primary duties were to answer emails and assist walk-ins in the reception area. (Id.) Emma Craighead believed that plaintiff was to be lead walk-in support. (Id. at ¶ 46(AF).)

         In early May 2014, the average time that plaintiff was on the telephone was “the exact time that it took for her telephone to ring, be transferred to a cisco voicemail message system, hear the message, and then be disconnected.” (ECF No. 72-32 at ¶ 20.)[31] Data also showed that plaintiff received double the amount of telephone calls that other representatives received in a day. (Id.) O'Neil believed that this indicated that plaintiff was either not properly responding to inquiries or was not answering the telephone at all. (See id.)

         On May 13, 2014, O'Neil sent out a message to the educator licensing unit, stating that the CDE's phone system had been acting “a bit funny in the last few weeks, ” and that, even though she thought the issues had been resolved, any new problems should be reported. (ECF No. 91-1 at ¶ 60(AF).) The problems were related to “disconnects and long wait times.” (Id. at ¶ 61(AF).) CDE had received complaints of this ilk prior to and after May 14, 2014. (Id.) Disconnected telephone calls had been occurring since the end of February 2014. (Id. at ¶ 67(AF).) Klein believed that everyone in the office was aware of issues related to the Avaya telephone system. (Id. at ¶ 62(AF).) During May 2014, plaintiff was logged into the Avaya system for only nine days, starting May 12, 2014. (Id. at ¶ 65(AF).) Craighead received complaints about customers being disconnected and long wait times every day from May 2014 until mid June 2014. (Id. at ¶ 66(AF).)[32] As of May 29, 2014, O'Neil did not believe that plaintiff was responsible for all of the disconnected telephone calls. (ECF No. 85-10 at 261:4-16.)[33]

         On June 3, 2014, plaintiff submitted a request for FMLA leave. (ECF No. 91-1 at ¶ 111.) O'Neil was not aware of this leave request. (Id. at ¶ 112.)

         On June 4, 2014, plaintiff was sitting at the back desk in the CDE reception area; a desk which Grange had occupied prior to her retirement in May 2014. (ECF No. 91-1 at ¶¶ 68-69(AF), 72 (AF).) The telephone on the back desk had been assigned to Grange, and Grange had set up voicemail on the telephone. (Id. at ¶¶ 69(AF), 72 (AF).) When Grange retired, CDE retained the telephone's extension, but Grange's voicemail was discontinued. (Id. at ¶ 72(AF).) Each customer service center employee had a personal telephone number associated with their telephone. (Id. at ¶ 71(AF).) The telephone on the back desk could receive calls through the Avaya system as well as calls placed to the telephone number directly associated with the telephone. If a telephone call did not come through the Avaya system, an employee could identify the caller by looking at the caller Id. (Id.)[34]

         Klein believed that, if an employee was logged into Avaya and did not pick up a telephone call, the call would go to voicemail and, if voicemail was not set up, the caller would be disconnected. (ECF No. 91-1 at ¶ 74(AF).) Klein did not share this information with plaintiff. (Id. at ¶ 75(AF).) Klein and plaintiff also did not have discussions about “the divert key.” (Id. at ¶ 76(AF).) In June 2013, plaintiff was emailed a telephone guide, which stated, inter alia, that a telephone call could be diverted to voicemail by pressing “the iDivert soft key.” (ECF No. 90-5 at 1-3.) Plaintiff believed that the divert button would push a telephone call to somebody else. (ECF No. 85-34 at 44:4-10.)[35] Employees were not trained on what the divert button did because O'Neil believed that under no circumstances should anyone have been using that button. (ECF No. 90-1 at ¶ 8.) O'Neil informed Craighead that, when the divert button was pressed and voicemail was not working or full, a telephone caller would be disconnected. (Id. at ¶ 77(AF).) O'Neil did not share this information with plaintiff. (Id. at ¶ 78(AF).)

         O'Neil and Klein instructed plaintiff to watch the call center queue and only answer telephone calls if there were six or more callers in the queue. (ECF No. 85-34 at 29:5-14, 42:1-20.)[36]McGrew told plaintiff to keep “the Avaya system on in case you need to jump in, but hit the divert because it will go to someone else.” (ECF No. 91-1 at ¶ 82(AF).)[37] McGrew told plaintiff to not answer telephone calls, but to divert them. (Id. at ¶ 83(AF).)[38]

         On June 4, 2014, O'Neil watched a live security video of plaintiff, which showed her both logged in and logged out of the “Avaya” phone system. (ECF No. 91-1 at ¶ 113.)[39] Plaintiff was the only customer service representative O'Neil was watching. (Id. at ¶ 87(AF).) The video shows the following:[40] a person (presumably plaintiff) sitting at a desk; on numerous occasions, a red light on the telephone and an orange light on the telephone's console light up (presumably this means the telephone is ringing); the individual then either presses a button on the console, causing the lights to turn off, or leaves the telephone alone until the lights turn off (presumably this ends the call); on two occasions, when the lights are on, the individual picks up the telephone very slightly and then immediately puts the telephone back down, which turns the lights off. (See ECF No. 72-47.)

         O'Neil also recorded an audio video of plaintiff on June 4, 2014. (Id. at ¶ 88(AF).) The audio recording is the telephone message O'Neil heard immediately after plaintiff hit the divert button. (Id.)[41]

         Klein believed that call center representatives logging into the Avaya system did so by picking up the telephone and immediately hanging up. (ECF No. 91-1 at ¶ 97(AF).) The same procedure applies for logging out. (Id. at ¶ 98(AF).)[42] Craighead would also pick up the telephone's receiver and hang it up without speaking when she was logging in and out of the Avaya system. (Id. at ¶ 100(AF).) When plaintiff logged in or out of the Avaya system she would pick up the telephone and hang it up as part of that process. (Id. at ¶ 102(AF).) At times, because plaintiff was having problems with the Avaya system, she would pick up the telephone's receiver and listen in an attempt to determine what had caused the problem and whether she was actually connected. (Id. at ¶ 103(AF).)[43] Klein could not recall if she told plaintiff that she was logging in or out of the Avaya system incorrectly. (Id. at ¶ 104(AF).)

         Bacca prepared a written summary for O'Neil of the video surveillance. (Id. at ¶ 106(AF).) In the summary, Bacca wrote that plaintiff hanged up on a customer at 12:13:06, but Bacca testified that, at that time, he did not see a red and yellow light come on, which for all other telephone calls he had seen. (ECF No. 85-31 at 76:11-19.)

         After being repeatedly called on the telephone, plaintiff went to O'Neil and asked her why she kept calling plaintiff. (ECF No. 91-1 at ¶ 108(AF).) O'Neil replied that it was because plaintiff was hanging up on customers, and then told plaintiff that she was being put on administrative leave. (Id.) O'Neil told Hawley that plaintiff was seen on video repeatedly failing to answer the telephone, which O'Neil said resulted in disconnected callers. (ECF No. 72-25 at ¶ 11.)[44] Hawley believed that such conduct was “so egregious” that she placed plaintiff on administrative leave on June 4, 2014. (Id. at ¶ 12; ECF No. 91-1 at ¶ 115.)[45]

         Pursuant to Board Rule 4-28(C)(8), employees with unsatisfactory performance indicating an inability to perform in an area directly related to the job could be removed from consideration for relevant vacancies. (ECF No. 91-1 at ¶ 110(AF).) Under Board Rule 6-2, an employer also has the option to terminate employment when an act is so flagrant or serious that immediate discipline is proper. (Id.)[46]

         An investigation revealed that there were no technical problems with the Avaya system or plaintiff's work station, but CDE did not investigate plaintiff's complaint of a computer problem. (Id. at ¶ 117.) Plaintiff had complained to Klein on June 4, 2014 that she was having problems with the Avaya system not allowing her to log in and out. (Id. at ¶¶ 91, 93(AF).) Plaintiff had complained to Klein about similar problems previously. (Id. at ¶ 92(AF).) Klein attributed plaintiff's computer problems to “user error, ” in that plaintiff would lock herself out of the computer's password, rather than a problem with the computer itself. (ECF No. 72-11 at ¶¶ 23, 25.)

         On June 17, 2014, CDE approved plaintiff's June 3, 2014 request for FMLA leave. (Id. at ¶ 119.)

         On July 25, 2014, Hawley sent plaintiff a letter terminating her employment as of July 31, 2014. (Id. at ¶ 121.)[47] O'Neil recommended to Hawley that plaintiff's employment be terminated. (ECF No. 72-32 at ¶ 29.) Klein, plaintiff's direct supervisor, supported the decision to terminate her employment due to plaintiff's poor work performance and the events of June 4, 2014.[48] (ECF No. 91-1 at ¶ 123.) If the events of June 4, 2014 had not taken place, Hawley did not believe that plaintiff would have been fired, and that plaintiff was “moving forward with her performance evaluation, she had a corrective action, but she had specific activities, we were actually a few weeks from having her check in on those activities, and the hope was that she could meet those activities.” (ECF No. 85-39 at 124:21-125:9.)[49]

         III. ...

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