KEITH M. FULLER, Plaintiff,
REPORT AND RECOMMENDATION No. 26
LISA PUPO LENIHAN, Chief Magistrate Judge.
It is respectfully recommended that the Motion for Summary Judgment filed by Defendant AT&T at ECF No. 26 be denied.
Plaintiff, Keith Fuller ("Plaintiff" or "Fuller") filed this lawsuit against his former employer, AT&T Mobility Services, LLC ("AT&T") pursuant to the Family Medical Leave Act ("FMLA"). Fuller complains that AT&T interfered with his right to family medical leave in violation of 29 U.S.C. § 2615(a)(1), and fired him in retaliation for invoking his family medical leave rights in violation of 29 U.S.C. § 2615(a)(2). (ECF No. 1.)
Unless otherwise indicated, the following facts are undisputed and taken from the parties' Statements of Material Facts and responses thereto at ECF Nos. 28, 32, 34 and 39.
AT&T hired Fuller as a Retail Sales Consultant in March 2008. (ECF Nos. 28 & 32 at ¶ 1.) Most recently, he worked at an AT&T retail store in downtown Pittsburgh. (ECF Nos. 34 & 39 at ¶ 1.) As a Retail Sales Consultant, he sold phones, accessories, and mobile services. (ECF Nos. 34 & 39 at ¶ 2.) The parties appear to agree that Fuller was characterized as an AT&T Mobility employee.
When Fuller began working at the downtown Pittsburgh store, the store manager was Rebecca Alcantara ("Alcantara"). (ECF Nos. 28 & 32 at ¶ 7.) Alcantara accepted a company severance package in December 2010 and left AT&T. (ECF Nos. 28 & 32 at ¶ 7.) Linda Pryce ("Pryce") replaced Alcantara as the store manager. (ECF Nos. 28 & 32 at ¶ 7.) Carmine Mataranzzo ("Mataranzzo") was the assistant manager at the downtown Pittsburgh store from 2008 until October 2011. (ECF Nos. 34 & 39 at ¶ 9.)
In late June or early July 2010, Fuller notified his co-workers and managers that his wife was pregnant with their first child. (ECF Nos. 34 & 39 at ¶ 13.) At the time that he notified his managers about the pregnancy, Fuller was not in jeopardy of losing his job for disciplinary or performance issues. (ECF Nos. 34 & 39 at ¶ 14.) Fuller was aware that under the FMLA, he could take time off to be with his newborn baby. (ECF Nos. 34 & 39 at ¶ 17.) On May 26, 2010, he sent an email to the AT&T Human Resources One Stop ("HR One Stop") requesting information about FMLA leave. (ECF Nos. 34 & 39 at ¶ 17.) According to Plaintiff, the HR One Stop email response did not explain the procedure for requesting FMLA leave. (ECF No. 32 at ¶ 26.) Instead, the HR One Stop response referred Fuller to the Care of Newborn Leave of Absence policy for AT&T. (ECF Nos. 34 & 39 at ¶ 18.)
According to AT&T's Associate Director of FMLA Operations, Joseph Atilano ("Atilano"), the procedure for a Mobility employee in retail sales to request FMLA leave is to submit the request through the AT&T Mobility Centralized Payroll Change Assistance ("MCPCA") website. (Atilano Dep., ECF No. 35 at 38.) The MCPCA department completes the FMLA-1 form and provides a copy to the employee. (ECF No. 28 at ¶ 26.)
The record does not reflect any further discussions concerning Fuller's FMLA leave requests during the summer of 2010.
In September or October 2010, Fuller told Alcantara that he planned on taking FMLA leave following the birth of his child. (ECF Nos. 34 & 39 at ¶ 26.) The parties agree that Alcantara informed Fuller about the AT&T FMLA website and Fuller reviewed the website. (ECF Nos. 28 & 32 at ¶ 32.)
The parties disagree about what else Alcantara instructed Fuller to do. Fuller states that Alcantara instructed Fuller to submit the FMLA request to her. (ECF No. 34 at ¶ 27.) Fuller asserts that based on this instruction, he submitted an FMLA leave request via email to Alcantara. (ECF No. 34 at ¶ 28.) When Fuller followed up with Alcantara, she told him it was still too early to submit the request, because he was requesting time off in January. (ECF No. 34 at ¶ 30.)
Alcantara disagrees with Fuller's recollection of the FMLA conversations. Alcantara states that Fuller never emailed her about his desire to take FMLA leave. (ECF No. 39 at ¶ 29.) According to her, when they spoke about FMLA leave, she instructed him to submit his request through the AT&T FMLA website. (ECF No. 39 at ¶ 27.)
After Alcantara accepted a severance package and left AT&T, Fuller asserts that he sent the new store manager, Pryce, an email requesting FMLA leave for the birth of his son. (ECF No. 34 at ¶ 31.) He followed up the email with a verbal request for FMLA leave. (ECF No. 34 at ¶ 31.) Fuller testified that Pryce denied his request for FMLA leave and stated, "we all have children we want to spend time with, this is a retail job." (ECF No. 34 at ¶ 32.)
Pryce remembers having a conversation with Fuller, but denies telling him he could not take FMLA leave for the birth of his son. (ECF No. 39 at ¶ 32.) Pryce recalls instructing Fuller to contact the AT&T FMLA office to ensure ...