Sharon Murray v. AT&T Mobility

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted April 14, 2010*
Decided April 15, 2010

Before

WILLIAM J. BAUER, Circuit Judge

RICHARD A. POSNER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 09-3334

SHARON MURRAY, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.

v. No. 08-03159

AT&T MOBILITY LLC, Jeanne E. Scott,
Defendant-Appellee. Judge.

ORDER

Sharon Murray worked as a customer-service representative in AT&T’s Springfield,
Illinois, call center from 2003 until she was fired in March 2008 for excessive absenteeism.
During the six months before AT&T fired her, Murray missed a substantial amount of work
for health-related reasons. This case arises from a dispute between Murray and AT&T over
how much of that time was covered by the Family and Medical Leave Act (FMLA), see 29

*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Accordingly, Murray’s motion for oral argument is denied and the appeal is
submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2)(C).
No. 09-3334 Page 2

U.S.C. §§ 2601-2654, and whether AT&T was required to accommodate her with additional
leave under the Americans with Disabilities Act (ADA), see 42 U.S.C. § 2000(e). The district
court granted summary judgment to AT&T on the federal claims and declined to exercise
supplemental jurisdiction over the remaining claims based on Illinois workers’
compensation law. We affirm.

Background

AT&T’s call centers must maintain certain staffing levels to handle the large volume
of calls that they receive each day. The company, therefore, strictly enforces its attendance
policy through a point system to keep track of each employee’s unscheduled absences.
Under that policy, AT&T may fire for excessive absenteeism an employee who accumulates
12 or more points during a rolling 12-month period. (Points are based on the length of
absence; absences between two hours and a full shift generate one point). Additionally,
AT&T extends the 12-month period by the number of days of any continuous absence,
effectively delaying the expiration of points. Not all absences are subjected to the point-
system. Employees do not incur points for time off for short-term disability and for up to
480 hours (i.e., 12 weeks) of FMLA leave.

In August 2007 Murray submitted a request for intermittent FMLA leave. She
needed time off to treat her supraventricular tachycardia, a heart-rhythm disorder that
causes the heart to race suddenly and produces secondary symptoms of dizziness,
sweating, chest pain, shortness of breath, and an inability to concentrate. AT&T (acting
through a third-party administrator) approved her request, allowing Murray leave up to
two days weekly, but this proved insufficient. So AT&T approved Murray’s second request
for FMLA leave, this one for the entire period between September 24 and October 21; it also
approved her request for short-term disability benefits.

The dispute over Murray’s use of FMLA leave and the calculation of her absence
points began when she returned to work in October 2007. AT&T accommodated Murray
with a modified return-to-work schedule from October 22 through December 17 that
required her to work only 24 hours per week (three 8-hour shifts). AT&T charged the
missed 16 hours per week against her FMLA balance, and notified her of this by letter.
Murray also took additional FMLA leave under her previously approved intermittent-leave
plan on some of the three days a week that AT&T had scheduled her to work. But Murray
did not properly report these absences because, she says, she had trouble logging into the
company’s leave-recording system. Instead, Murray tracked her absences on her personal
calendar, which her attendance manager relied on when the manager returned from her
own leave of absence in February 2008. When the manager finished reconciling Murray’s
attendance records in February, she realized that Murray had exhausted her FMLA leave.
No. 09-3334 Page 3

The parties disagree about whether and when Murray’s FMLA leave ran out, but Murray
concedes that by February 8 she knew that AT&T believed she had used all 480 hours. But
she continued to take leave to address her health issues, and each time she received a letter
denying her leave request and explaining that her absences did not qualify under the
FMLA. On February 21, AT&T managers warned Murray that all future FMLA requests
would be denied because she had exhausted her 480 hours of leave.

Meanwhile, Murray told her managers that she was experiencing pain, numbness,
and tenderness in her hands, wrists, and forearms—all of which she believed was caused by
a work-related injury. The attendance manager recommended that Murray request an ADA
accommodation. So Murray visited her doctor, who examined and diagnosed her with a
form of bilateral carpal tunnel syndrome that limited her ability to type. The physician
added that when Murray experiences an attack of her heart-rhythm disorder (the frequency
and duration of which are not specified), she is significantly limited in her ability to breathe
and perform manual tasks.

Armed with this report, Murray requested two accommodations from AT&T:
permission to break up her lunch hour so that she could take more frequent breaks
throughout the day, and approval to use her vacation time for medical appointments even
on days already closed for additional employee leave requests. AT&T denied her requests,
explaining that her physician’s evaluation did not support the need to take more frequent
breaks, and that both of her proposed accommodations violated the collective bargaining
agreement. AT&T also reasoned that it had already granted Murray an accommodation for
her heart disorder: it allowed her to take breaks and perform exercises during an attack to
calm her heart rate and ease her symptoms.

At the end of February, AT&T determined that Murray had accumulated 17.5
unexpired absence points. AT&T had assessed most of these points for medical absences
occurring after Murray had, in its view, exhausted her FMLA balance. Three of these
points, Murray claims, would have expired if not for AT&T’s policy of extending the rolling
12-month attendance period for employees who have taken prolonged leaves of absence.
By the time that AT&T fired her three weeks later, she had accumulated another 5.75 points,
totaling 23.25.

Murray continued to complain to AT&T that it had miscalculated her FMLA leave
when she was on the transitional work schedule, prompting the company to review her
records. The audit revealed an error: AT&T had overcharged Murray’s FMLA balance by
22 hours. But even when these 22 hours were recredited, her relevant absences still
substantially exceeded her FMLA entitlement of 480 hours, and she still had a total of 18.5
points. Murray does not dispute the absences, just their legal significance.
No. 09-3334 Page 4

Shortly after filing her pro se complaint, and before the parties had completed any
discovery, Murray filed a motion for partial summary judgment on the issue of liability.
The parties fought over additional discovery requests, but the district court allowed only
discovery that complied with Federal Rule of Civil Procedure 56(f). AT&T then filed a cross
motion for summary judgment, which the court granted. The court determined that Murray
provided no evidence that AT&T prevented her from exhausting her FMLA leave before it
fired her. In addition, the court concluded that AT&T’s policy of extending the expiration
date of attendance points did not violate the FMLA because the policy applied to all types of
extended leave, not just the FMLA, and thus was not discriminatory. As for the ADA claim,
the court ruled that Murray could not demonstrate that she could meet AT&T’s expectation
of regular attendance (an essential job function). Because she was not otherwise qualified
for the job, AT&T did not violate the ADA by not providing her with a reasonable
accommodation.

Discussion

On appeal Murray renews three principal arguments on her FMLA claims that she
pressed in the district court. First, she contends that AT&T fired her for absenteeism before
she had exhausted her 480 hours of FMLA leave.

The FMLA guarantees eligible employees who suffer from serious health conditions
12 weeks of unpaid leave per year. 29 U.S.C. § 2612(a)(1). It is unlawful for an employer to
“interfere with, restrain, or deny the exercise of” this right. Id. § 2615(a)(1); Kauffman v. Fed.
Express Co., 426 F.3d 880, 884 (7th Cir. 2005). As relevant here, to survive summary
judgment on her FMLA “interference” claim, Murray had to produce evidence that AT&T
denied her unexhausted FMLA leave. See Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir.
2009).

Murray has not produced such evidence. She has furnished copies of her annotated
timecard records and the company’s spreadsheet summarizing her leaves of absence, but
these documents do not prove that AT&T denied unexhausted FMLA leave, and courts are
not required to scour the record for evidence to support a party’s arguments. See Haxhiu v.
Mukasey, 519 F.3d 685, 691 (7th Cir. 2008); Greer v. Bd. of Educ. of the City of Chi., 267 F.3d 723,
727 (7th Cir. 2001). The one specific block of time that Murray claims that AT&T
improperly deducted from her FMLA balance are the absences (two days each week)
incurred when she was on her reduced, three-day per week schedule. She says that because
the reduction was an accommodation under the ADA, the absences do not reduce her
FMLA balance. But even if the modified schedule were an accommodation, AT&T could
still charge the absences against her FMLA entitlement. 29 C.F.R. § 825.702(c) (employer
No. 09-3334 Page 5

can provide a qualified individual with a disability a reduced work schedule as a
reasonable accommodation and count this as FMLA leave if it notifies the employee). The
general rule is that other types of available leave, such as short-term disability and workers’
compensation leave, may be charged against FMLA balances. Id. § 825.702(d)(2); see
Hendricks v. Compass Group, USA, Inc., 496 F.3d 803, 805 (7th Cir. 2007); Repa v. Roadway
Express, Inc., 477 F.3d 938, 941-42 (7th Cir. 2007). Since Murray does not identify another
dispute over the amount of time missed, there is no genuine issue regarding exhaustion of
her FMLA leave.

Murray’s second argument is that even if her alleged ADA accommodation could
count against her FMLA leave, AT&T had to notify her of this policy, see 29 C.F.R.
§§ 825.300, 825.702(c), before it could subtract those hours from her statutory leave. Murray
dismisses the letter that AT&T sent her notifying her of the policy as fraudulent, but she has
no evidence to support the charge. Moreover, a technical violation of an FMLA regulation
does not entitle Murray to relief unless she can demonstrate prejudice. See Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 88-89 (2002). But this she cannot do because she has
not said that she would have refused the reduced schedule if she had known that it counted
against her FMLA leave. See id. at 90.

Murray’s third FMLA claim is that AT&T’s policy of delaying the expiration of
absence points—by stopping the 12-month expiration clock for the time that an employee is
on FMLA leave—unlawfully punishes the employee for invoking FMLA leave. In Bailey v.
Pregis Innovative Packaging, Inc., No. 09-3539, slip op. at 8 (7th Cir. Apr. 2, 2010), we recently
held that the FMLA does not prohibit an employer from stopping the clock and postponing
the expiration of absence points by the length of an FMLA leave. We explained that the Act
does not require employers to extend benefits during FMLA leave, 29 U.S.C. § 2614(a)(3)(A),
and continuing to run the 12-month expiration clock during leave would be such a benefit,
Bailey, No. 09-3539, slip op. at 7.

Next, Murray contends that AT&T violated the ADA by refusing to engage in the
required interactive process over her heart and carpal tunnel conditions. Specifically, she
argues, AT&T refused to offer any possible accommodations for those conditions after it
rejected her request for intermittent lunch breaks and special vacation privileges. To
establish a violation of the ADA, including a refusal to engage in the interactive process,
Murray must show that she is qualified to perform the essential functions of the job with or
without reasonable accommodation. See Winsley v. Cook Co., 563 F.3d 598, 603 (7th Cir.
2009); EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005). An employer is
generally permitted to treat regular attendance as an essential job requirement and need not
accommodate erratic or unreliable attendance. EEOC v. Yellow Freight Sys. Inc., 253 F.3d 943,
948-49 (7th Cir. 2001) (collecting cases); Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir.
No. 09-3334 Page 6

1999). AT&T considered attendance to be an essential element of the job, allowing only 12
absence points annually. Murray accumulated more than 18 absence points and
substantially exceeded her FMLA balance, so it is difficult to see how she met the essential
attendance element of her job. In any case, we think that AT&T did engage in the
interactive process. It considered her request, explained its reasoning for not being able to
accommodate it, and reminded her of another accommodation it was already making. This
was sufficient. See Mays v. Principi, 301 F.3d 866, 870-71 (7th Cir. 2002); Gile v. United
Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000).

Finally, Murray argues that the district court improperly denied her various
discovery requests. We review discovery orders for abuse of discretion, Little Co. of Mary
Hosp. v. Sebelius, 587 F.3d 849, 856 (7th Cir. 2009), and Murray must show prejudice from the
denials, Walker v. Mueller Indus., Inc., 408 F.3d 328, 334 (7th Cir. 2005). The district court
acted within its discretion in allowing only discovery that complied with Rule 56(f). Brill v.
Lante Co., 119 F.3d 1266, 1275 (7th Cir. 1997); Chambers v. Am. Trans Air, Inc., 17 F.3d 998,
1001-02 (7th Cir. 1994). Moreover, Murray has not explained how the discovery she sought,
if answered, could have altered the outcome of this case. In fact, she maintains that she
submitted more than enough evidence for the district court to rule in her favor. Thus, she
cannot be prejudiced by the denial of discovery which she admits she did not need to
succeed on her claim. See Allen v. Martin, 460 F.3d 939, 943 (7th Cir. 2006); Chambers, 17 F.3d
at 1002.

Murray raises a raft of other issues that we have considered but do not require
further discussion. And we need not address her arguments about the merits of her
workers’ compensation claims because the district court properly dismissed these without
prejudice, declining to exercise supplemental jurisdiction.

Accordingly, we AFFIRM the judgment of the district court.