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Cote v. T-Mobile USA Inc

United States District Court, D. Maine

March 2, 2016

JESSICA COTE, Plaintiff,
T-MOBILE USA, INC., Defendant.



Jessica Cote claims that T-Mobile USA, Inc. interfered with her taking medical leave and also terminated her employment in retaliation for her taking medical leave, thus violating the Family Medical Leave Act and the Maine Family Medical Leave Act. T-Mobile USA, Inc. moved for summary judgment, claiming that it terminated Ms. Cote for reasons unrelated to her medical leave and that it did not interfere with her right to use medical leave. The Court concludes that Ms. Cote defeats the motion for summary judgment on the federal and state retaliation claims, because there are genuine issues of material fact as to whether T-Mobile USA, Inc. terminated Ms. Cote because she exercised rights under these federal and state laws. However, with Ms. Cote’s consent, the Court grants the motion for summary judgment as to the interference claim.


On September 3, 2014, Jessica Cote filed a complaint in this Court against T-Mobile USA, Inc. (T-Mobile), her former employer, alleging that T-Mobile violated the Family Medical Leave Act (FMLA), 29 U.S.C. § 2617, and its state counterpart, the Maine Family Medical Leave Act (MFMLA), 26 M.R.S. §§ 843-848. Compl. (ECF No. 1). On November 13, 2014, T-Mobile answered the Complaint. Def.’s Answer (ECF No. 8). On July 17, 2015, T-Mobile filed a motion for summary judgment and a statement of material facts. Def.’s Mot for Summ. J. (ECF No. 16); Def.’s Statement of Material Facts (ECF No. 17) (DSMF). On August 17, 2015, Ms. Cote filed a response to T-Mobile’s motion, a response to its statement of material facts, and her own statement of material facts. Pl.’s Opp’n to Def.’s Mot. for Summ. J. (ECF No. 21) (Pl.’s Opp’n); Pl.’s Resp. to Def.’s Statement of Material Facts and Pl.’s Statement of Additional Material Facts (ECF No. 20) (PRDSMF; PSAMF). On September 3, 2015, T-Mobile filed a reply memorandum, a reply to Ms. Cote’s statement of additional facts, and a statement of additional facts. Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. for Summ. J. (ECF No. 24) (Def.’s Reply); Def.’s Resp. to Pl.’s Statement of Additional Material Facts (ECF No. 25) (DRPSAMF); Reply Statement of Additional Material Facts (ECF No. 25) (DRSAMF).[1] On September 14, 2015, Ms. Cote responded to T Mobile’s additional material facts. Pl., Jessica Cote’s Resp. to Def.’s Reply Statement of Additional Material Facts (ECF No. 26) (PRDRSAMF).


Ms. Cote’s Complaint contains three counts: (1) Count One-a claim that T-Mobile interfered with her right to use FMLA qualified leave and terminated her as a result of her use of FMLA qualified leave, an asserted violation of 29 U.S.C. § 2617;[2](2) Count Two-a claim that T-Mobile retaliated against her because she exercised her FMLA rights, an asserted violation of 29 U.S.C. § 2617; and (3) Count Three-a claim that T-Mobile retaliated and discriminated against her for her exercise of rights under the MFMLA, an asserted violation of 26 M.R.S. §§ 843-48. Compl. at 4-6.


A. General Background

T-Mobile operates a call center in Oakland, Maine which employs approximately 400 people. DSMF ¶ 1; PRDSMF ¶ 1. Inside the call center, customer service representatives (CSRs) are organized into teams. DSMF ¶ 2; PRDSMF ¶ 2. Each team has between two and fifteen CSRs. DSMF ¶ 3; PRDSMF ¶ 3. A “Coach” is a supervisor who supervises a team. DSMF ¶ 4; PRDSMF ¶ 4. Each team also has a “Senior Rep” who is responsible for taking escalated calls, assisting the Coach, and handling some administrative tasks; the CSRs do not report to the Senior Rep. DSMF ¶ 5; PRDSMF ¶ 5. Approximately six teams are organized into a group which is led by a team manager. DSMF ¶ 6; PRDSMF ¶ 6.

T-Mobile hired Jessica Cote as a CSR in 2005. DSMF ¶ 7; PRDSMF ¶ 7. In 2005, the CSR’s job consisted mostly of answering customers’ questions about their phones or their service. DSMF ¶ 8; PRDSMF ¶ 8. In 2011, the role of the CSR was changed to include a sales component. DSMF ¶ 9; PRDSMF ¶ 9. T-Mobile provided extensive sales training to its CSRs when it added a sales component to CSRs’ jobs during 2011. PSAMF ¶ 83; DRPSAMF ¶ 83. On each call, a CSR was required first to answer the customer’s question or solve the problem, and after dealing with the issue which generated the customer’s call, CSRs were trained to look at a caller’s account to see if there were any enhancements that might improve that customer’s experience with service. DSMF ¶ 10; PRDSMF ¶ 10.

Along with a sales expectation, T-Mobile tracked metrics relevant to the performance of CSRs. DSMF ¶ 11; PRDSMF ¶ 11. Those metrics tracked sales-per-productive-hour (SPPH), the call resolution time (CRT), the frequency with which a customer had to call back with the same problem (iOCR), and feedback from the customer after the call. DSMF ¶ 12; PRDSMF ¶ 12. Each metric is averaged per productive hour or per call; for example, the SPPH metric divides the total sales a CSR accrued while being on the phone with customers by the total number of hours that the CSR was on the phone. DSMF ¶ 13; PRDSMF ¶ 13. Just as CSRs are responsible for their own metrics, Coaches are responsible for their teams’ collective scores. DSMF ¶ 14; PRDSMF ¶ 14. Coaches are not evaluated on a raw sales number; rather, the SPPH for each of their CSRs is averaged so that the metrics from a team with fifteen CSRs would be comparable to the metrics from a team with four CSRs. DSMF ¶ 15; PRDSMF ¶ 15. Because the metrics are averaged over a working hour, having CSRs on leave does not affect any metric, including sales. DSMF ¶ 16; PRDSMF ¶ 16. “CEO” is an acronym within T-Mobile for Customer, Employee and Owners. PSAMF ¶ 104; DRPSAMF ¶ 104.

CSRs work in their teams for six months after which the call center is realigned and the CSRs are assigned to a different schedule, a different team, usually with a new Team Manager, Coach, and Senior Rep. DSMF ¶ 17; PRDSMF ¶ 17. When an employee is absent, the calls that they would have taken are allocated across the thousands of CSRs working in any of the multiple call centers located across the country. DSMF ¶ 18; PRDSMF ¶ 18. A CSR’s absence means fewer escalated calls that a Coach must take and fewer “coachings” that a Coach must complete. DSMF ¶ 19; PRDSMF ¶ 19. In some cases, an underperforming CSR’s absence can help a team’s metrics by raising the average. DSMF ¶ 20; PRDSMF ¶ 20.

B. Jessica Cote, T-Mobile Employment and Medical Leave

After beginning employment in 2005, Ms. Cote first took leave from August 7, 2006 through October 4, 2006; she then took leave from February 19, 2007 through March 26, 2007, from April 30, 2007 through July 2, 2007, from April 7, 2008 through May 17, 2008, from April 21, 2009 through November 23, 2009, and from November 15, 2010 through May 25, 2011; Ms. Cote requested and was granted intermittent leave from November 30, 2011 through September 20, 2012. DSMF ¶ 21; PRDSMF ¶ 21. T-Mobile issued Ms. Cote discipline related to her attendance, but that discipline was not related to any FLMA protected absences. DSMF ¶ 22; PRDSMF ¶ 22. Mr. Cote’s most recent disciplinary action concerning her attendance was given on April 20, 2007, five years before she was terminated. DSMF ¶ 23; PRDSMF ¶ 23. In the last five years before her termination, Ms. Cote’s absences were excused through the use of various leave entitlements, including the FMLA. DSMF ¶ 24; PRDMSF ¶ 24. When her FLMA benefits were exhausted, T-Mobile granted Ms. Cote additional leave. DSMF ¶ 25; PRDSMF ¶ 25.

When T-Mobile employees entitled to intermittent leave need to miss work, they call their Coach to report their absences. DSMF ¶ 26; PRDSMF ¶ 26. After the Coach receives the call from the employee, the Coach then reviews the employee’s leave entitlement and asks the Resource Planning Department at T-Mobile to code the absence as approved leave in the company records. DSMF ¶ 27; PRDSMF ¶ 27. Time coded as approved FMLA leave is not counted as an absence for the purpose of measuring an employee’s attendance record. DSMF ¶ 28; PRDSMF ¶ 28. After contacting the Resource Planning Department to report the absence of the CSR, the Coach then checks to see if the employee had previously scheduled any work for himself or herself (a “follow-up”) that needed to be completed that day. DSMF ¶ 29; PRDSMF ¶ 29. Pursuant to Ms. Cote’s FMLA leave agreement with T-Mobile, she could miss up to three days per month for any absence due to her medical conditions. PSAMF ¶¶ 94, 119; DRPSAMF ¶¶ 94, 119.

Ms. Cote took an extended medical leave from November 15, 2010 to May 25, 2011. DSMF ¶ 30; PRDSMF ¶ 30. When she returned to work, she was informed about the new job requirements for CSRs, including the sales expectation. DSMF ¶ 31; PRDSMF ¶ 31. T-Mobile then provided Ms. Cote with several hours of training on how to meet her new objectives. DSMF ¶ 32; PRDSMF ¶ 32.

C. Jessica Cote and Performance Problems at T-Mobile

Coaches at T-Mobile constantly listened in to calls made by their CSRs to monitor performance.[4] PSAMF ¶ 118; DRPSAMF ¶ 118.

In February 2012, before she was realigned off his team, Ms. Cote’s Coach, Ward Kortleven, issued her a formal reminder, which is a second-level form of corrective discipline. DSMF ¶ 33; PRDSMF ¶ 33. The formal reminder stated that Ms. Cote had failed to hit any of her metrics, especially SSPH and CRT. DSMF ¶ 34; PRDSMF ¶ 34. The formal reminder did not mention Ms. Cote’s attendance and Ms. Cote cannot recall any conversations with Mr. Kortleven about her attendance or leave. DSMF ¶ 35; PRDSMF ¶ 35.

In February 2012, Ms. Cote also reviewed these metrics and the formal reminder with her new Coach, Greg Forney. DSMF ¶ 36; PRDSMF ¶ 36. In a group meeting with all of the CSRs, Mr. Forney discussed the need for CSRs to be present, but never discussed any specific attendance issues with Ms. Cote. DSMF ¶ 37; PRDSMF ¶ 37. In April 2012, Ms. Cote’s metrics began to improve and her formal reminder status expired in or about May 2012. DSMF ¶ 38; PRDSMF ¶ 38.

In coaching sessions, Mr. Forney noted that Ms. Cote attributed the improvement in her performance to “scripting, ” a training tool where a CSR is provided an actual script that helps him or her facilitate a discussion with the customer; she also attributed the improvement to “nesting” with other CSRs to learn their techniques. DSMF ¶ 39; PRDSMF ¶ 39. Mr. Forney’s coaching notes that documented these coaching sessions with Ms. Cote do not discuss offering free services or discounts to customers as a way of increasing sales. DSMF ¶ 40; PRDSMF ¶ 40.

D. T-Mobile and Courtesy Credits

Under T-Mobile policy, a Coach may grant a CSR limited discretion to give a courtesy credit, up to a certain amount, when a long-term customer has been inconvenienced by T-Mobile.[5] DSMF ¶ 41; PRDSMF ¶ 41. The policy makes clear that courtesy credits should only be used as a last resort and that courtesy credits should never be used to make a sale. DSMF ¶ 42; PRDSMF ¶ 42. When a CSR gives a courtesy credit, he or she is supposed to code that credit under “GDWILL” in the system T-Mobile uses to track such discounts. DSMF ¶ 43; PRDSMF ¶ 43. If a CSR gives a credit within their limit, they do not need prior approval from their Coaches or Senior Reps. DSMF ¶ 44; PRDSMF ¶ 44. In 2012, the Coaches and Seniors Reps might not even have known that a CSR had issued a credit within his or her limit because they were not provided with reports listing the credits given by each of their CSRs. DSMF ¶ 45; PRDSMF ¶ 45. If a Coach wanted to see the credits issued by a specific CSR, he or she would have to go into the system to pull a special report. DSMF ¶ 46; PRDSMF ¶ 46. Nevertheless, the Coaches periodically reviewed credits and adjustments made by CSRs.[6] PSAMF ¶ 118; DRPSAMF ¶ 118.

In late 2011 or early 2012, T-Mobile incentivized sales by offering bonuses to CSRs who met or exceeded their sales targets. DSMF ¶ 47; PRDSMF ¶ 47. T-Mobile also changed a policy to allow CSRs to keep the credit for their sales, even if the customers called back and changed their minds. DSMF ¶ 48; PRDSMF ¶ 48. After the change in policy, T-Mobile noticed that certain CSRs improperly added features to an account without the customer’s consent or offered the customer additional services for free. DSMF ¶ 49; PRDSMF ¶ 49. In order to give the customer free services, the CSR would add the services, issue a credit for the amount of the services, and then enter in a reminder to cancel the service before the end of the billing cycle. DSMF ¶ 50; PRDSMF ¶ 50. Oakland Call Center employees labeled the activity “slamming” an account or MRC (monthly recurring charge) Fraud. DSMF ¶ 51; PRDSMF ¶ 51.

During the summer of 2012, CSRs were held to a metric, or rating system, that heavily weighed sales. PSAMF ¶ 84; DRPSAMF ¶ 84. The reason T-Mobile added sales to the CSRs job responsibilities, and as a metric, was to gain revenue. PSAMF ¶ 85; DRPSAMF ¶ 85. Johnna Hatt of T-Mobile testified that T-Mobile was losing revenue in 2012.[7] PSAMF ¶ 86; DRPSAMF ¶ 86. In 2012, T-Mobile was advertising and selling “unlimited data service” to its customers. PSAMF ¶ 87; DRPSAMF ¶ 87. T-Mobile customers were sold a particular data package of either a gigabyte, two gigabytes, or five gigabytes. PSAMF ¶ 88; DRPSAMF ¶ 88. When a customer reached a certain data threshold, T-Mobile slowed down the customer’s data speeds to a dial-up speed.[8] PSAMF ¶ 89; DRPSAMF ¶ 89. Slowing down a customer’s data speed to the dial-up speed created a slow connection and “not [] a very good experience for the customer.” PSAMF ¶ 90; DRPSAMF ¶ 90. T-Mobile used the term “throttling” to describe the tactic of slowing down a customer’s data speed to dial up speed and it led to many customers calling T-Mobile’s CSRs thinking that their cellphones were broken. PSAMF ¶ 91; DRPSAMF ¶ 91. CSRs were told that when a customer called the company after being “throttled, ” the CSR should try and sell them a larger data plan. PSAMF ¶ 92; DRPSAMF ¶ 92. T-Mobile considered selling a customer a more expensive data plan after they had been throttled an “easy upsell.” PSAMF ¶ 93; DRPSAMF ¶ 93.

E. Jessica Cote and Courtesy Credits

In August 2012, the Oakland Call Center was realigned and Ms. Cote was assigned to a new team with Sharon Mumley as her Coach and Ryan Bowman as her Team Manager. DSMF ¶ 52; PRDSMF ¶ 52. Ms. Mumley never had any conversation with Ms. Cote about her attendance and Ms. Cote does not recall having any conversation with Ms. Mumley about her FMLA leave. DSMF ¶ 53; PRDSMF ¶ 53.

Just before the realignment, Ms. Mumley discovered that another CSR, K.W., was issuing an inappropriate number of credits in an effort to increase her sales. DSMF ¶ 54; PRDSMF ¶ 54. Ms. Mumley noticed the credits when she was processing K.W.’s follow-ups. DSMF ¶ 55; PRDSMF ¶ 55. T-Mobile terminated K.W. from employment for giving improper credits. DSMF ¶ 56; PRDSMF ¶ 56.

F. T-Mobile’s Firing of Jessica Cote

Ms. Cote had been out on intermittent FMLA leave twice during the week leading up to her termination. PSAMF ¶ 124; DRPSAMF ¶ 124. On August 29, 2012, Ms. Cote called Ms. Mumley to inform her that she would be taking her intermittent leave and that she would not be in that day. DSMF ¶ 57; PRDSMF ¶ 57. Ms. Mumley logged the leave and reported the absence according to T-Mobile procedure. DSMF ¶ 58; PRDSMF ¶ 58. Later that day, Ms. Mumley checked to see if Ms. Cote had any follow-ups that needed to be performed that day. DSMF ¶ 59; PRDSMF ¶ 59. When she pulled Ms. Cote’s follow-ups, Ms. Mumley noticed that the number of credits to be entered by Ms. Cote raised a red flag.[9] DSMF ¶ 60; PRDSMF ¶ 60. Ms. Mumley then pulled a report that showed a sample of calls where Ms. Cote had given credits, and listened to the sampled calls where Ms. Cote had given an adjustment.[10] DSMF ¶¶ 61-62; PRDSMF ¶¶ 61-62. Ms. Mumley pulled another report showing Ms. Cote’s total adjustments issued since February 2012 and found that she had issued more than $30, 000 in credits. DSMF ¶ 64; PRDSMF ¶ 64.

Ms. Mumley collected the information and reported to her Team Manager, Ryan Bowman. DSMF ¶ 65; PRDSMF ¶ 65. Because Mr. Bowman managed six separate teams at that time, he did not know Ms. Cote nor did he know that she was entitled to take intermittent FMLA leave. DSMF ¶ 66; PRDSMF ¶ 66. Mr. Bowman reviewed the information gathered by Ms. Mumley and listened to the recordings of the calls himself. DSMF ¶ 67; PRDSMF ¶ 67. Mr. Bowman was very concerned about the credits issued by Ms. Cote because she was issuing approximately $5, 000 in credits per month; he would consider credits in the range of $400 to $600 per month to be high. DSMF ¶ 68; PRDSMF ¶ 68. Based on his review of the information, Mr. Bowman was concerned that Ms. Cote was able to increase her sales, and therefore her bonus, by adding features to customer accounts without charging the customer for it, and because she was crediting the accounts, T-Mobile was not making any money on the features she was adding.[11] DSMF ¶ 69; PRDSMF ¶ 69. Mr. Bowman concluded that Ms. Cote’s conduct amounted to an offense against T-Mobile which warranted her termination. DSMF ¶ 70; PRDSMF ¶ 70.

On September 1, 2012, Mr. Bowman called Ms. Cote to join Ms. Mumley and himself in a conference room, accused Ms. Cote of fraudulent activity, and asked Ms. Cote for an explanation of the credits. DSMF ¶ 71; PRDSMF ¶ 71; PSAMF ¶ 95; DRPSAMF ¶ 95. Mr. Bowman explained to Ms. Cote that he considered her conduct to be “slamming” or “MRC fraud” because T-Mobile did not realize revenue from the sale. DRSAMF ¶ 128; PRDRSAMF ¶ 128. Ms. Cote explained that she did offer the credits in order to get customers to purchase extra features but that “everybody was doing it” and she was told by her Senior Rep Daryl Wright and her Coach Greg Forney that it was permissible to do so.[12] DSMF ¶ 72; PRDSMF ¶ 72. In fact, she told Mr. Bowman and Ms. Mumley that she had spoken to Daryl Wright, her prior Senior Representative, and Greg Forney, her prior Coach, and that they had approved the credits she was issuing. PSAMF ¶ 114; DRPSAMF ¶ 114.

Based on her discussions with co-employees at work and in the smoke shack, and her reviews of credits issued by other CSRs while she was doing follow-ups on customer accounts, Ms. Cote believed that all the CSRs were giving credits; she could not, however, recall the specific names of any CSRs who were doing so.[13] DSMF ¶ 73; PRDSMF ¶ 73. Mr. Bowman sent Ms. Cote home for the day with pay. DSMF ¶ 74; PRDSMF ¶ 74. Mr. Bowman then made the decision to terminate Ms. Cote’s employment. DSMF ¶ 75; PRDSMF ¶ 75.

After he made his decision, Mr. Bowman brought the reports to Human Resources who approved the decision. DSMF ¶ 76; PRDSMF ¶ 76. Mr. Bowman did not consult Daryl Wright or Greg Forney before making the decision to terminate Ms. Cote’s employment. DSMF ¶ 77; PRDSMF ¶ 77. Ms. Mumley listened to all of the calls that were the basis for her investigation and went over her findings from these calls with Ryan Bowman before Mr. Bowman made his decision to terminate Ms. Cote. PSAMF ¶ 126; DRPSAMF ¶ 126. Ms. Mumley gave Mr. Bowman a verbal summary of her findings about Ms. Cote’s calls.[14] PSAMF ¶ 117; DRPSAMF ¶ 117. Mr. Bowman testified that the recorded phone calls were not important to his decision to terminate Ms. Cote’s employment because he concluded that the improper activity in which she was engaging was taking place with credits and the customer would not have been aware that the credits were not authorized.[15] DSMF ¶ 79; PRDSMF ¶ 79. Mr. Bowman also testified that the evidence was sufficient to document the reasons for his decision to terminate Ms. Cote.[16] DSMF ¶ 80; PRDSMF ¶ 80. Mr. Bowman informed Sharon Mumley that he followed up with Daryl Wright regarding Ms. Cote’s statement that Mr. Wright encouraged the credits that Ms. Cote was giving. PSAMF ¶ 115; DRPSAMF ¶ 115. Mr. Bowman based his decision to terminate Ms. Cote after reviewing the information provided to him by Sharon Mumley and listening to the phone calls in which Ms. Mumley based her assertion that Ms. Cote was engaging in fraudulent activity. PSAMF ¶ 125; DRPSAMF ¶ 125.

At the time and unless they are otherwise saved, T-Mobile discarded recorded phone calls after 90 days. DSMF ¶ 81; PRDSMF ¶ 81. Recorded phone calls are generally only saved when an employee is being disciplined for his or her rude behavior toward a customer; they are not typically saved in cases where the CSR is terminated for issuing improper credits. DSMF ¶ 82; PRDSMF ¶ 82.

Karen Estes verbally signed-off on Mr. Bowman’s decision to terminate Ms. Cote’s employment. DRSAMF ¶ 127; PRDRSAMF ¶ 127. On or about September 2, 2012, Ryan Bowman and Karen Estes called Ms. Cote and ...

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