ENTRY DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT
TANYA WALTON PRATT,
This matter is before the Court on the parties' cross Motions for Summary Judgment. Defendant AT&T Corp. ("AT&T") moves for summary judgment (Dkt. 41) on Plaintiff Equal Employment Opportunity Commission's ("EEOC") claim on behalf of Lupe Cardona ("Ms. Cardona"), a former AT&T employee. The EEOC moves for partial summary judgment (Dkt. 48) on AT&T's liability for two causes of action under the American with Disabilities Act ("ADA"): discriminatory discharge and failure to accommodate. The Court identifies multiple disputed issues of material fact barring summary judgment for either party. For the reasons set forth below, both motions are DENIED.
The following material facts are undisputed. Ms. Cardona began working for AT&T in 1984 as a Customer Sales & Service Specialist ("Specialist"). In 2001, she began working at the Indianapolis, Indiana call center. Specialists handle customer calls. AT&T values providing timely responses to customer calls and minimizing waiting periods is a primary customer service objective. Accordingly, Specialists' work schedules are determined so as to handle the anticipated number of customer calls during a given shift.
AT&T employs a progressive discipline process for absences on the following progression: verbal warning, written warning, final warning, and then, either termination or reinstatement of final warning. Attendance infractions more than one year old will not serve as a basis to progress an employee to the next stage of discipline. AT&T publishes its employee policies to an internal intranet, but does not maintain an employee handbook of its written policies.
In 2002, Ms. Cardona was diagnosed with Hepatitis C, a serious virus that attacks the liver. In October 2009, Ms. Cardona returned to her doctor to receive treatment for Hepatitis C. In January 2010, a liver biopsy revealed Ms. Cardona's Hepatitis C had progressed to grade 3, the second most severe grade. Her doctor recommended that she seek treatment to avoid liver damage and possible death. Ms. Cardona was specifically diagnosed with Hepatitis C-3a, which typically takes longer than 24 weeks to treat. The treatment is somewhat complicated, is temporary and may have severe side effects. On February 2, 2010, Ms. Cardona commenced treatment of alpha interferon and Ribavirin for Hepatitis C. As a result of her treatment, she utilized intermittent and then extended leave under the Family Medical Leave Act ("FMLA") throughout much of 2010.
On May 17, 2010, Ms. Cardona did not come into work. AT&T called and asked Ms. Cardona why she was not at work, to which Ms. Cardona replied that she thought it was still the weekend. A little later that same day, Ms. Cardona called AT&T to report that she needed to take FMLA leave for the day. In her call, she stated that she was sick, incoherent, and did not realize it was a Monday. On May 20, 2010, Ms. Cardona received a Final Written Warning for unsatisfactory attendance as the result of a March 19, 2010 absence when she missed eight hours of work as a result of her Hepatitis C treatment. The Final Written Warning stated, "Attendance is an essential function of your job. Satisfactory attendance is a condition of your employment!" Dkt. 43-11 at 2 (emphasis in original).
On June 8, 2010, Manager Shalawn Francois ("Manager Francois") received an email informing her that Ms. Cardona had called in to use FMLA because of Ms. Cardona's Hepatitis C condition, and Ms. Cardona had inquired about the amount of FMLA leave she had left. Also on June 8, 2010, Manager Trudy Rowe ("Manager Rowe") emailed electronic audio files of Ms. Cardona's "call-ins" to Manager Francois and Employment Relations Manager ("ERM") Brenda Rutledge ("ERM Rutledge"). In response, ERM Rutledge emailed Managers Francois and Rowe that:
[o]ne thing we want to ensure is that any time [Ms. Cardona] tells us that her medical condition is keeping her from performing her job, we are directing her to [AT&T's Integrated Disability Service Center ("IDSC")] to request job accommodations... from the voicemails that [Manager Rowe] sent over, [Ms. Cardona] is indicating that her medication is affecting her.
Dkt. 50-33 at 1-2. ERM Rutledge explained in deposition that she meant that, "if [Ms. Cardona] stated that she had a medical condition that was keeping her from doing her job, then it was her right to see if she could request a job accommodation to help her." Dkt. 50-8 at 5, 25:2-7. ERM Rutledge did not have a specific accommodation in mind and could not recall whether she followed up on this subject. Also on June 8, 2010, ERM Rutledge informed AT&T Labor Specialist Mary Ellen that Ms. Cardona appeared to suffer from a condition, for which she takes medication, which sometimes affects her job performance. ERM Rutledge described it as a disability issue, but did not clarify what she meant by disability.
On June 16, 2010, Ms. Cardona had a disciplinary meeting with Manager Terri Basso ("Manager Basso"), during which she stated that she has Hepatitis C and her medications were affecting her ability to function at work. Ms. Cardona further stated that a cure might take six months. Manager Basso told Ms. Cardona, "[i]f the medication is causing you not to perform your job you must contact IDSC and speak to a case manager about job accommodations." Dkt. 50-12 at 2. Ms. Cardona asked what job accommodations would mean, and Manager Basso replied, "[t]his is what you can discuss with them for job accommodations and I give you time right now.... They may be able to help[, ] I'm going to give you the number." Dkt. 50-12 at 2. Manager Basso then gave Ms. Cardona time to contact IDSC.
IDSC is operated by Sedgwick Claims Management Services, Inc., and handles Short Term Disability ("STD") claims and the job accommodation request process for AT&T. The job accommodation process includes conferring with employees regarding their requests for accommodation, evaluating any medical substantiation for such accommodation requests, and tracking information related to accommodation requests. The STD policy allows for an employee to receive wage replacement benefits if he or she is absent from work more than seven consecutive days and has a certified disability that does not qualify for Worker's Compensation coverage. Ms. Cardona called IDSC on June 16, 2010 and spoke with a customer service agent. Ms. Cardona was advised that as an employee with 25 years of service, she was eligible to receive up to 52 weeks of STD benefits with full pay. The agent then processed Ms. Cardona according to AT&T's STD plan.
Ms. Cardona did not report to work on June 17, 2010, and remained absent until October 25, 2010, under the STD policy and using her remaining FMLA leave. Also on June 17, 2010, Manager Basso received notification from IDSC that Ms. Cardona had made a claim for STD benefits. Also on that date, Manager Rowe forwarded the disciplinary minutes from June 16, 2010, to ERM Rutledge along with the note that Ms. Cardona had contacted IDSC and left work on FMLA. ERM Rutledge responded that "it would not surprise me if [Ms. Cardona] went into a disability which may be what she needs." Dkt. 50-26 at 1.
On July 2, 2010, Ms. Cardona exhausted her FMLA leave available in 2010. Ms. Cardona's FLMA leave was statutorily protected and did not count against Ms. Cardona. However, AT&T did charge her continued absence during the remainder of her STD period as unexcused or unprotected. At the latest, Ms. Cardona was made aware that her remaining STD period was chargeable on July 23, 2010. On July 28, 2010, ERM Rutledge stated to Manager Aretha Smith that "[e]ither way, when she ...