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Turcotte v. Comcast Cable Communication Management, LLC

United States District Court, D. New Hampshire

February 14, 2019

Brenda Turcotte
v.
Comcast Cable Communications Management, LLC

          Leslie H. Johnson, Esq., Brian J. Bouchard, Esq., Christopher Cole, Esq.

          MEMORANDUM AND ORDER

          PAUL BARBADORO UNITED STATES DISTRICT JUDGE.

         Brenda Turcotte alleges that Comcast Cable Communications Management, LLC (“Comcast”), her former employer, violated the Americans with Disabilities Act (“ADA”) and its state-law analogue by failing to reassign her to a vacant position within the company as an accommodation for her disability. Comcast argues that it is entitled to summary judgment because Turcotte cannot prove at trial that she was entitled to a reassignment.

         I. BACKGROUND

         Turcotte worked at Comcast from November 2008 until August 2014. She was hired as a Customer Account Executive to field inbound telephone calls from Comcast customers. Her performance in this job was unsatisfactory. See Def.'s Ex. B (Doc. No. 15-3). Starting in March 2010, Turcotte took an 18-month leave of absence protected by the Family and Medical Leave Act (“FMLA”) due to work-related panic attacks and bereavement, her mother having recently died. Her medical providers furnished documentation to Comcast to support her entitlement to FMLA leave and her need for an accommodation. See Pl.'s Ex. 1, Attach. B1-B5 (Doc. No. 23-1).

         During her leave, Comcast placed Turcotte on an extended internal job search to explore new positions as an accommodation for her disability. In September 2011, she accepted a transfer to the position of Pre-Caller. In this role, she made outbound calls to customers to verify service appointments and do limited troubleshooting. See Def.'s Ex. H at 27 (Doc. No. 15-9). Turcotte performed satisfactorily in this job. See Pl.'s Ex. 1 ¶ 10 (Doc. No. 21-2).

         After about two years, in mid-2013, Comcast automated the Pre-Caller function and all Pre-Callers transitioned to Dispatch positions, tasked with receiving inbound calls from field technicians. See Def.'s Ex. H at 92 (Doc. No. 15-9); Def.'s Ex. J at 160-61 (Doc. No. 15-11). Comcast trained all Pre-Callers, including Turcotte, on how to perform the Dispatch job. See Def.'s Ex. H at 69-70 (Doc. No. 15-9). Before the transition became fully effective, Pre-Callers started fielding a small No. of inbound calls from technicians, in addition to their outbound call duties. See Def.'s Ex. J at 118-19 (Doc. No. 15-11). Turcotte struggled with inbound calls. Id. at 116-18. Her poor performance led Comcast to retrain her for three weeks in the fall of 2012, which involved an experienced employee sitting side-by-side with Turcotte throughout her shift. See Def.'s Ex. M (Doc. No. 15-14). Turcotte either observed the calls that the trainer fielded or had the trainer guide her through her own calls. See id.

         Despite retraining, Turcotte's performance did not improve. When the transition to Dispatch was complete in mid-2013, Turcotte's supervisor, Bonnie Fournier, began receiving complaints about Turcotte from field technicians. See Def.'s Ex. N (Doc. No. 15-15). When Fournier sought to discuss some of those complaints as part of Turcotte's mid-year review in August 2013, Turcotte refused to meet with her. See Id. Instead, Turcotte emailed an HR rep, indicating that she was frustrated at work and would consult her attorney. See Def.'s Ex. O (Doc. No. 15-16).

         Within a few days of that incident, HR reps met with Turcotte on two occasions. See Def.'s Ex. P (Doc. No. 15-17). During each meeting, Turcotte said that she could no longer field inbound calls because of a medical condition. See Id. She requested as an accommodation either a transfer to a new job or lower inbound call volume in her Dispatch position.

         Comcast asked Turcotte to provide a medical certification to substantiate her claim and, in the interim, placed her in a temporary light-duty assignment performing “install intercepts, ” which involved making outbound calls to customers. See Def.'s Ex. R (Doc. No. 15-19). Turcotte requested that this be made into a permanent position for her. Comcast refused and told her the assignment would end shortly due to a lack of work. Id.

         A few days later, on August 20, Comcast received a certification from Turcotte's healthcare provider, Nurse Tracey Bottazzi. See Pl.'s Ex. 1, Attach. B-7 (Doc. No. 23-1). When asked whether Turcotte had a physical or mental impairment and whether such an impairment substantially limited a major life activity, Bottazzi answered “No” to both questions. See Id. She also stated that Turcotte could do the essential functions of her job (fielding inbound calls) without any accommodation. See id.

         In response, Comcast offered to reinstate Turcotte to her Dispatch position and to retrain her again, which she accepted. Fournier developed a four-week retraining program. See Def.'s Ex. S (Doc. No. 15-20). Turcotte says that her retraining was not successful and that she continued to experience anxiety and panic attacks during that period. See Pl.'s Ex. 1 ¶ 18 (Doc. No. 21-2). At one point, Fournier told her she should seek another job within the company.[1] See Id. ¶ 22.

         In mid-September, toward the end of her retraining, Turcotte stopped working and informed Comcast that she had filed for short-term disability leave benefits. See Def.'s Ex. T (Doc. No. 15-21). She was approved for those benefits, as well as FMLA leave. Nurse Bottazzi's supporting paperwork, which was sent to Comcast's third-party disability leave administrator, Sedgwick, stated that Turcotte was “[u]nable to fully perform job functions” and noted that she was exhibiting increased blood pressure and pulse, tearfulness, and panic attacks. See Pl.'s Ex. 1, Attach. B-8 (Doc. No. 23-1). Bottazzi projected that Turcotte could return to work in three weeks. See Id. About three weeks later, Bottazzi again furnished a similar form to Sedgwick and extended Turcotte's leave for three additional weeks. See Pl.'s Ex. 1, Attach. B-9 (Doc. No. 23-1).

         Unbeknownst to Comcast, the following month Bottazzi refused Turcotte's request to further extend her leave and dismissed Turcotte from her practice. See Def.'s Ex. V (Doc. No. 16-4). Bottazzi did so because she believed that Turcotte had dissembled and not followed her treatment plan.[2] See Def.'s Ex. A at 14-17 (Doc. No. 16-1).

         In December 2013, while on leave, Turcotte applied for two vacancies at Comcast using the company's public website: Business Services Customer Care Virtual Business Class Billing Rep, Cycle 1 (“Virtual Rep”) and Coordinator 2, Facilities (“Facilities Coordinator”). See Pl.'s Ex. 1, Attach. A (Doc. No. 21-3). She did not notify Comcast that she was seeking those jobs as an accommodation for her disability, and neither application led to a job offer. See id.

         Comcast wrote a letter to Turcotte in January 2014, informing her that her right to FMLA leave had expired in December and that her short-term disability benefits had ended in January. See Def.'s Ex. W (Doc. No. 15-24). The letter explained that, if she needed an accommodation in order to return to work, a healthcare provider should complete an enclosed certification form on her behalf. See id.

         On January 31, 2014, a new provider, Counselor Gretchen Grappone, supplied that certification. She stated that Turcotte suffered from social phobia and that this impairment substantially limited a major life activity. See Pl.'s Ex. 1, Attach. B-10 (Doc. No. 23-1). Because Turcotte had “anxiety around high volume of inbound calls, ” Grappone opined that she could not perform the essential functions of her Dispatch job. See Id. A reasonable accommodation, according to Grappone, would be a “reduced inbound call requirement, ” at least until Turcotte gained confidence she could handle the work. See id.

         In response, Comcast informed Turcotte in February that taking inbound calls was an essential function of her job and that the company was not able to reduce or control the No. of inbound calls she would take. See Def.'s Ex. Y (Doc. No. 15-26). Comcast, however, offered to engage in an interactive process and place her on a 60-day internal job search to identify a vacant position to which she could be reassigned as an accommodation.[3] See id.

         Comcast assigned Jim Lewis, an HR manager, to oversee and facilitate Turcotte's job search. See Def.'s Ex. F ¶ 13 (Doc. No. 15-7). Lewis tracked down open positions within her geographic area, compiled them into a bulleted list, and generally emailed the list to Turcotte twice a week. See id.; Pl.'s Ex. 1 ¶ 33 (Doc. No. 21-2). They had weekly telephone calls to discuss potential jobs. See Def.'s Ex. F ¶ 14 (Doc.

         No. 15-7); Pl.'s Ex. 1 ¶ 33 (Doc. No. 21-2). Turcotte believes that on some occasions Lewis did not send her every vacancy. See Pl.'s Ex. 1 ¶ 32 (Doc. No. 21-2). This is because, she explains, she found additional positions in her area that Comcast had advertised on external websites. See id.

         On February 5, 2014, Turcotte told HR Rep Southworth that she had applied for the position of Coordinator 1, Technical Product Sales (BSS) (“BSS Coordinator”) through an external website, CareerBuilder.com. See Pl.'s Ex. 1, Attach. A-3 (Doc. No. 21-6). Southworth told her not to apply through external websites because she would “show up as an external candidate, not a Comcast employee.” See Id. Instead, Turcotte should apply through Lewis so that he could work directly with the assigned recruiter. See Id. Turcotte replied that she understood. See Id. Although Southworth said she would contact the recruiter for the BSS Coordinator position, Turcotte never received a response.[4] See id.; Pl.'s Ex. 1, Attach. A (Doc. No. 21-3).

         A week later, on February 12, Turcotte told Lewis she was interested in a vacancy for a Coordinator 2, Product Sales (MDU) (“MDU Coordinator”) position. See Pl.'s Ex. 1, Attach. A-4 (Doc. No. 21-7). Lewis responded on February 22 that her medical restrictions precluded her from performing the essential functions of that job because she would have to field 63-72 inbound calls per day. See Def.'s Ex. II (Doc. No. 15-36); see also Def.'s Ex. PP ¶¶ 2-3 (Doc. No. 27-2). Turcotte rejected Lewis's assessment, insisted that she was qualified for the position, and asked for a certification form so that her healthcare provider could reassess her restrictions. See Def.'s Ex. PP ¶ 4 (Doc. No. 27-2). Lewis explained that if she could do the MDU Coordinator job, then she would likely be reinstated to her Dispatch position because this would mean she could in fact field a large volume of inbound calls. See Id. ¶ 5.

         Two days later, Turcotte applied for the position of Rep 2, Credit & Collections (Outbound) (“Collections Rep”). See Pl.'s Ex. 1, Attach. A-5 (Doc. No. 21-8). On March 14, Lewis told her that Comcast would consider her for this position, but she would need to sign a medical records release form to answer concerns about her work restrictions. See Pl.'s Ex. 1, Attach. A-6 (Doc. No. 21-9). When it sent her the release form, Comcast asked Turcotte to “include the contact information for the medical provider completing the Certification form on your behalf.” See Def.'s Ex. KK (Doc. No. 15-38). The release form had space for the contact information of a single provider and options to limit the type of information disclosed, including by condition and time period. See Id. The information would be disclosed to Comcast's clinical review officer. See id.

         Turcotte refused to complete the release form because she believed that Comcast had no valid reason to request it. See Pl.'s Ex. 1 ¶¶ 35-38 (Doc. No. 21-2). She was also concerned that the release would have allowed Comcast to obtain medical records from all her healthcare providers and to speak to her providers, effectively giving the company unfettered access to her medical history. See Id. ¶ 35.

         It is unclear whether Turcotte told Comcast that she would not complete the release form. On March 21, however, Lewis informed her that the Collections Rep position remained open, but he reiterated that the company would need the release form. See Def.'s Ex. LL (Doc. No. 15-39).

         That same day, Counselor Grappone reassessed Turcotte's work restrictions at her request.[5] See Pl.'s Ex. 1, Attach. B-11 (Doc. No. 23-1). The certification states that Turcotte's social phobia did not limit any major life activities, that the condition was “well managed with medication [and] skill use, ” and that she could perform the essential functions of her job without an accommodation.[6] See id.

         Grappone's assessment of Turcotte's ability to work is consistent with her treatment notes recording Turcotte's statements during three appointments in February and March. Turcotte had reported that she felt “able to handle phone calls in any new Comcast position, ” was “ready to return to work with no restrictions or need for accommodations, ” and was “ready and able to return to work.” See Def.'s Ex. DD (Doc. No. 16-7); Def.'s Ex. QQ (Doc. No. 27-3). Grappone's notes also indicate that in March, Turcotte had asked her “not to provide any information by phone to any Comcast representatives under the advice of her attorney.” See Def.'s Ex. DD (Doc. No. 16-7).

         Based on Grappone's March certification, Comcast offered to reinstate Turcotte to her Dispatch position effective April 8. See Def.'s Ex. BB (Doc. No. 15-29). Turcotte refused, claiming that she was medically incapable of performing that job and that Grappone had been given an incorrect job description. See Def.'s Ex. CC (Doc. No. 15-30); Def.'s Ex. MM (Doc. No. 15-40).

         Comcast's next move was to extend Turcotte's job search for an additional 30 days, through May 21, 2014. See Def.'s Ex. CC (Doc. No. 15-30). In April, she applied for three positions: NH Facilities / Mailroom (“Mailroom”) and two Intern/Co-op, Administrative Services positions (“Intern 1” and “Intern 2”). Turcotte used Comcast's public website to apply for the Intern 1 position and did not notify Comcast that she was applying as an accommodation candidate. See Def.'s Ex. PP, Attach. 1 (Doc. No. 27-2). Comcast eventually informed her via email that it “decided to consider other candidates” for that position. See Pl.'s Ex. 1, Attach. A-12 (Doc. No. 21-15). The other two positions she pursued through the internal job search. Comcast determined that she was not qualified for the Mailroom position, [7]but the company offered her the Intern 2 position.

         The internship, which was paid but offered no benefits, was scheduled to run from June until August 2014. Lewis informed Turcotte that if she accepted it, her internal job search would end, and she would need to go through the normal bidding process for future positions. See Def.'s Ex. FF (Doc. No. 15-33); Def.'s Ex. F ¶¶ 16-17 (Doc. No. 15-7). Turcotte nonetheless accepted, and Lewis hired her over other, potentially more qualified, applicants. See Def.'s Ex. F ¶ 17 (Doc. No. 15-7).

         During the internship and after her internal job search had ended, Turcotte applied for two new vacancies at Comcast: Administrative Assistant, Hudson, NH (“Admin Assistant 1”) and Assistant 2, Administrative Services, Customer Care (“Admin Assistant 2”). See Pl.'s Ex. 1, Attach. A (Doc. No. 21-3). She applied for those jobs via internal postings available to all Comcast employees. See Def.'s Ex. PP, Attach. 2 (Doc. No. 27-2). Although she had contact with the company's recruiters for those positions, Turcotte did not notify them, or anyone else at Comcast, that she was requesting those positions as an accommodation for her disability. See Pl.'s Ex. 1, Attach. A-11 (Doc. ...


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