By Nick Hurston
An employee who routinely received above-average performance reviews and received the highest rating possible in her last two reviews before her termination will have her discrimination case heard by a jury.
The 4th U.S. Circuit Court of Appeals vacated the dismissal of the employee’s discrimination claim after finding enough evidence to send the claim of discrimination under the Americans with Disabilities Act, or ADA, to a jury.
The employer put forth several arguments, including that the plaintiff wasn’t meeting its legitimate business expectations, a discrimination inference was unwarranted and its reason for terminating her wasn’t pretextual.
Judge Roger L. Gregory disagreed.
“There is a sufficient basis for a reasonable factfinder to conclude that [the employee] — despite being similarly-situated to the comparators — was treated differently,” he wrote.
The judge added that a “reasonable factfinder could conclude that [the employer] searched for and found the single nugget of misconduct that allowed it to place [the employee] on an IAP and set the course for her termination.”
Gregory was joined by Judge Stephanie D. Thacker. Judge A. Marvin Quattlebaum Jr., concurred in part and dissented in part, saying the evidence didn’t support a finding that the employee met legitimate expectations.
The July 22 opinion is Cowgill v. First Data Technologies Inc. (VLW 022-2-179).
Terri Cowgill worked as a call center representative from 2004 until September 2015 for First Data Technologies, Inc., a credit and debit card processing company.
Cowgill handled calls about disputed transactions and was expected to refrain from “call avoidance,” a broad set of prohibited behaviors, such as failing to or not promptly answering, and prematurely hanging up.
Except for being placed on a 30-day Improvement Action Plan, or IAP, in 2006, Cowgill “retained a spotless disciplinary record’ … and ‘she routinely received above-average performance reviews.’”
In January 2015, Cowgill requested leave under the Family and Medical Leave Act, or FMLA, due to back pain from a car accident. Her physician said she needed a “reduced work schedule: 4 hour(s) per day; 3-5 days per week” for a month.
First Data approved her for an “intermittent leave of absence,” and she was required to follow her “business unit’s call in procedures” and try to schedule doctor’s appointments during non-work hours.
Eight months later, Cowgill recertified her request for FMLA leave but limited it to one to two days per month.
Cowgill testified that she complained to her supervisor, Dawn Rowe, who told her to request leave for physical therapy or flare ups as needed using their call-in system.
However, Cowgill said that “schedule compliance” was part of First Data’s review system and the requests would count against her.
According to Cowgill, First Data never actually provided a reasonable accommodation because she wasn’t recertified for enough leave, although she couldn’t recall having been denied a request for intermittent leave.
On Feb. 11, 2015, Cowgill felt too uncomfortable to keep working, so she called in and requested leave. Instead of granting leave, First Data issued a final written warning that she had more than 64 hours of unscheduled absences and that further requests may result in termination.
Cowgill complained about harassment to Annette Wood, a human resources employee, who withdrew the warning. Wood told her she did so because Cowgill was “such a good rep,” but she never admitted the warning was a mistake. Wood also told her that “she needed to do what she had to do to ‘protect’ her job.”
In August 2015, Rowe informed Cowgill she was being put on a 90-day IAP due to alleged call avoidance and unprofessionalism during a call in the prior month.
According to Cowgill, the announcement was made immediately after she requested to recertify her FMLA leave. Furthermore, she argued that First Data had deviated from its policy of reviewing questionable calls within two days.
Despite the IAP requiring weekly performance coaching, Cowgill testified that Rowe only met with her once and that her advice was simply to “play pretty.”
Next month, a customer complained that Cowgill prematurely hung up.
Cowgill said she wasn’t aware of a problem with her equipment, and she greeted the caller three times, but she could only hear background voices. While hanging up, she heard a voice say “hello,” but she was unable to reconnect the call.
Viewing the incident as a second act of call avoidance, Rowe asked to terminate Cowgill.
In response, the HR director noted Cowgill’s good performance reviews, inquired about her mid-year 2015 evaluation and whether the allegations were “out of character” for her.
The director also pointed out that Cowgill received the FWW and IAP as her first level of discipline and didn’t understand what was motiving her decline in performance. Cowgill had received an “above-average” in her 2015 mid-year evaluation.
Cowgill filed a charge of ADA discrimination with the Equal Employment Opportunity Commission. When that was dismissed, she filed in U.S. District Court in Maryland.
In the complaint, Cowgill alleged disability discrimination and failure to accommodate under the ADA, as well as retaliation pursuant to the ADA and FMLA.
First Data moved to dismiss the retaliation claims under the FMLA as time-barred and for failure to exhaust remedies under the ADA, which the district court granted.
The district court later granted summary judgment to First Data and dismissed Cowgill’s disability discrimination and failure to accommodate claims.
The Fourth Circuit rejected First Data’s contention that Cowgill wasn’t meeting their legitimate business expectations.
“If an employer genuinely believed that one of its employees was performing poorly on metrics the employer perceives as important (as First Data claims here), it seems unlikely that it would rate the employee’s performance highly,” Gregory wrote. “Yet that is what happened here. The record shows that Cowgill ‘routinely received above-average performance reviews,’ and during her 2014 year-end and 2015 mid-year reviews, she received the highest rating possible — a ‘3.’”
Because Cowgill was entitled to the benefit of all inferences, the judge found a genuine dispute if she was meeting First Data’s expectations.
Gregory also noted that fact issues existed regarding causation.
“Cowgill disclosed her disability and requested an accommodation on January 20, 2015 and — exactly three weeks later — on February 11, First Data placed Cowgill on an IAP after she used the FMLA leave granted to her,” he wrote. “That First Data eventually withdrew the FWW does not erase the mark of discriminatory motive.”
Likewise, the judge continued, “Rowe placed Cowgill on an IAP immediately after Cowgill confirmed that she was requesting recertification of FMLA leave. The extremely short time gap between these two events raises an even stronger discriminatory inference….”
Finally, Wood’s statements to Cowgill about needing “to ‘protect’ her job” also revealed “a discriminatory motive because it suggests that Cowgill’s job would remain unprotected if she allowed her disability to get the way of her work performance,” Gregory pointed out.
Taken together, there is enough evidence “to create a jury question regarding the causation prong of Cowgill’s prima facia disability discrimination claim.”
Cowgill identified as comparators two employees First Data cited during the EEOC process. But here, First Data argued they weren’t valid comparators because they didn’t report to Cowgill’s supervisor.
Gregory dismantled this argument, saying caselaw shows “plaintiffs do not need to share the same supervisor in every case, and that comparison point is not a bar to relief in a case like this one, where the comparators are otherwise similar in ‘all relevant respects.’”
There was plenty of evidence for a factfinder that Cowgill was treated differently.
“For example, after engaging in call avoidance and being placed on a FWW, Comparator A was given special coaching attention, including reassignment of her work location to sit next to two team leaders for support and assistance,” the judge pointed out. “Yet, in spite of its commitment to coach Cowgill, First Data failed to follow through and ultimately did not go to the same lengths as it did with Comparator A to shore up Cowgill’s purported deficiencies.”
Gregory found evidence suggesting that, “for those without a disability — something more than call avoidance is required for termination,” such as taking long breaks and missing days of work at the same time.
“But Cowgill’s termination was prompted by call avoidance infractions alone — not anything more,” the judge noted.
Finally, the HR director’s inquiry about Cowgill’s sudden “out of character” conduct provided an additional layer of pretext, and it was “highly suspicious that Rowe failed to coach Cowgill,” he wrote.
The matter returns to the district court.