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An AT&T call center employee could not go to trial on Americans with Disabilities Act (ADA) claims of failure to accommodate, discriminatory discharge and retaliation because of her violation of the attendance guidelines, the U.S. District Court for the Western District of Tennessee ruled.Kirsten Williams was a customer service representative with AT&T Mobility Services LLC at the Memphis call center from 2006-14. Williams answered inbound calls and assisted with technical support and billing at the call center. AT&T's call center workforce management forecasts the volume of calls to be routed to the call center and schedules the workforce accordingly. However, when a customer service representative takes unscheduled leave, AT&T spreads the absent representative's calls over the remaining representatives in attendance, increasing their call loads and potentially slowing the center's response time. This increases wait times and customer frustration, and also harms workforce morale. To prevent this, AT&T uses attendance guidelines that track "unscheduled time away" due to absences, late arrivals or early departures using an "unscheduled absence point system." Under the attendance guidelines, eight or more points of unscheduled time away from a representative's scheduled shifts in a rolling 12-month period constitute unacceptable absenteeism and result in termination (absent extraordinary circumstances as determined by AT&T). Absences for certain types of job-protected leave, such as approved short term disability (STD) leave, Family and Medical Leave Act (FMLA) leave, and leave taken as part of an approved job accommodation, do not count toward the points calculated under the guidelines. However, other absences due to illness or injury that are not job-protected count toward the accumulation of points. Williams missed a significant amount of work in 2013 because of anxiety and depression, but used a combination of approved STD and FMLA leave to avoid termination. Williams was on STD leave from January through July 2013. She worked a few days in August 2013 and resumed STD leave in September 2013, which continued throughout October and part of November and December 2013. Williams was absent from December 3, 2013, to January 20, 2014, but her points were below the termination threshold.On January 30, 2014, and February 4, 2014, Williams' managers discussed the attendance policy with her, and she stated that she understood the policy. On February 20, 2014, Williams received her 2013 performance appraisal, which evaluated her performance as not meeting expectations for "attendance and punctuality."Between March 11, 2014, and April 9, 2014, Williams missed several days of work, and, from April 9, 2014, until her termination, she was absent from work. Williams sought to have her absences covered by FMLA or STD leave, or as a job accommodation. Williams also requested the accommodation of a flexible job schedule with unpaid leave for treatment of her depression and a flexible schedule allowing her to start and finish work late, and to take extra breaks for panic attacks.Because Williams had not worked 1,250 hours in the 12 months preceding her absences, she was unable to use FMLA leave to cover her unscheduled absences. AT&T's plan administrator approved STD leave for Williams from April 10, 2014, through May 27, 2014, but denied it from May 28, 2014, forward on the ground that she had not provided sufficient medical information, and AT&T denied her request for a job accommodation.Williams was sent a letter directing her to return to work by June 10, 2014. Williams did not return to work on June 10, 2014, and, as of June 11, 2014, she had accumulated 26 attendance points. After June 11, 2014, Williams' medical care providers provided additional information, and management sent Williams another return-to-work letter, setting her return for June 30, 2014.Williams responded that she could not return to work on June 30, 2014. Management thereafter made the decision to terminate her employment as of July 3, 2014, for having incurred more than eight attendance points in violation of the attendance guidelines and for failing to report to work. Before trial, AT&T moved for summary judgment to dismiss Williams' ADA claims. The court reasoned that, while Williams' depression and anxiety were a disability within the meaning of the ADA, Williams could not show that she could perform the essential function of punctuality and regular attendance required to do her job.For an interactive position, punctuality and regular attendance were necessary because the call center had to have sufficient staff to service incoming call loads; additionally, peak call loads occur early in the morning and late in the evening. Because Williams could not perform an essential function of her position, she was not a qualified individual with a disability under the ADA. Thus, her discriminatory discharge claim failed, and her retaliation claim could not establish that her requests for accommodation led to her discharge.Williams v. AT&T Mobility Services LLC, W.D. Tenn., 2:15-cv-02150-STA-dkv, (June 6, 2016).Professional Pointer: Employers can enforce time and attendance policies as long as they make appropriate exceptions for leave under the ADA and FMLA. By keeping track of protected versus unprotected leave, employers can avoid liability for discrimination claims.Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
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