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Dantes v. Southwestern Electric Power Co.

United States District Court, W.D. Louisiana, Shreveport Division

May 1, 2018

NICOLE C. DANTES
v.
SOUTHWESTERN ELECTRIC POWER COMPANY, ET AL.

          HORNSBY JUDGE

          MEMORANDUM RULING

          S. MAURICE HICKS, JR., CHIEF JUDGE

         Before the Court is Defendants Southwestern Electric Power Company (“SWEPCO”) and American Electric Power Service Corporation's (“AEP”) (collectively the “Defendants”) unopposed “Motion for Summary Judgment” (Record Document 49) seeking to dismiss all of Plaintiff Nicole C. Dantes' (“Dantes”) claims of discrimination under Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. For the reasons contained herein, Defendants' unopposed “Motion for Summary Judgment” is GRANTED.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         Dantes began her employment search with Defendants on February 13, 2007, seeking employment as a Customer Service Associate. See Record Document 49-5 at 68. Based upon her application, and following the completion of the employment application process, including an interview, she was employed on March 19, 2007 by the Defendants as a Customer Solutions Associate in Shreveport, Louisiana. See id. at 4. In her role with the Defendants, Plaintiff was responsible for processing customer requests, answering customer inquiries and resolving complaints within the Customer Solutions Center (“CSC”). See id. at 3. Customer Solutions Associates work at a desk in a call center environment which can be a high stress environment due to customers using the CSC to voice concerns, complaints and issues that are affecting not only electric service, but also emergencies, such as outages, downed power lines, and other hazards. See id. On November 1, 2007, Dantes left work early due to an alleged health-related issue. See id. at 4. From the following day until her termination, Dantes failed to report to work due to alleged health-related reasons, although she did not provide Defendants with necessary and requested information to substantiate her alleged health issue. See Record Document 49-3 at 3. Specifically, the AEP Recovery Center, which is responsible for administrating the Company's Sick Pay Plan, and Dantes' supervisors made numerous calls to her in November 2007 requesting more information to substantiate her absences in order to continue her sick pay. See id.

         AEP's Sick Pay Policy specifically requires “written documentation from a health care provider certifying the reason for the absence, expected date of return, and written proof of continuing inability to work.” Id. The Policy further requires that “you must notify your supervisor each day of your absence, unless other arrangements have been made.” Record Document 49-5 at 36. The Sick Pay Policy clearly provides that benefits under the Policy terminate when “you fail to submit, when requested, sufficient written objective medical information relating to your illness or injury which supports a functional impairment preventing you from performing your occupation or a reasonable employment option.” Id. at 40. Further, the AEP Recovery Center, sent correspondence to Dantes enclosing a blank Certificate of Disability / Attending Physician Statement advising that the form “must be completed and returned to the Recovery Center no later than [November 28, 2007].” Id. at 46.

         On November 14, 2007, two weeks after Dantes left early during her shift due to medical issues, Defendants began receiving doctors' slips providing that Dantes was “under the care of” a doctor or to “please excuse her from work.” See id. at 5. Specifically, the excuses Dantes provided to Defendants on November 14, 2007 are as follows:

• Return to Work or School Excuse dated November 5, 2007 by Dr. Cassiere stating that Nicole Dantes has been under his care on November 6, 2007 and is able to return to work on November 7, 2007.
• Excuse from Work / School dated November 8, 2007 by Willis Knighton Imaging Center stating “please excuse Nicole Dantes from work. This patient had a procedure/x-ray done at Willis Knighton Health Systems at the Portico location, in the Imaging Department.”
• A notation from Overton Brooks VA Medical Center dated 11/11/07 with a handwritten note which states “*may return to work on 11/14/07, ” and another handwritten note - which appears to be that of Ms. Dantes - states “VA emergency room seen on 11/11/07, ” but with no notation of what plaintiff was seen for at Overton Brooks on 11/11/07.
• A note from Ark-La-Tex Cardiology dated November 13, 2007 and signed by Dr. Laura K. Murphy stating “please excuse Nicole Dantes from work/school this date as he/she had an appointment in our office.”
• A note from John M. Gilmer, Jr., DDS, dated November 14, 2007, stating “This is to certify that Nicole Dantes had an appointment at this office for endodontic therapy on: November 14, 2007 at 9:15 o'clock. Please excuse from Work until 11/16/07.
• A second note from John M. Gilmer, Jr., DDS dated November 14, 2007, stating “This is to certify that Nicole Dantes has an appointment at this office for endodontic therapy on: November 28, 2007 at 8:00 o'clock. Please excuse from Work until 11/28/07.” An additional handwritten note - which appears to be that of Ms. Dantes - indicates that this is an “Extended Absence Excuse 11/14/07 - 11/28/07.”

Id. at 5-6. These work excuses do not comply with Defendants' Sick Pay requirements as they do not provide sufficient written objective medical information relating to Dantes' illness supporting a functional impairment preventing her from performing her job. See id. at 5.

         On November 14, 2007, Defendants also received a Certificate of Disability / Attending Physician Statement from Dr. Cassiere providing that Dantes had been treated for a “UTI” from November 2, 2007 through November 9, 2007, with a release to full duty on November 12, 2007. See id. at 5. On November 20, 2007, Defendants received another Certificate of Disability / Attending Physician Statement from Dr. Cassiere providing that Ms. Dantes had been treated for a “UTI / Dyspnea with speaking” from November 2, 2007 through November 9, 2007, with a release to full duty on November 12, 2007, which are the same dates previously set forth in Dr. Cassiere's November 12, 2007 Certificate. See id. at 6. Later, on November 27, 2007, AEP received a Certificate of Disability / Attending Physician Statement from Dr. Gilmer which provided that Dantes was being treated for a Root Canal on November 14, 2007. See id.[2]

         As a result of Dantes' continued absences and her failure to provide the necessary documentation, Ms. Pamela Dukes issued a termination letter to Dantes on November 27, 2007. See id. at 7. The next day, Ms. Vivian Andrews spoke with Dantes and confirmed the termination. See id. On November 29, 2007, after the expiration of the company's deadline for Dantes to submit documentation, Dantes alleges that she sent a two-page fax, inclusive of the coversheet, to SWEPCO.[3] See Record Document 49-7. The document allegedly contained either a Certificate of Disability / Attending Physician Statement from Dr. Kamm or a Return to Work Certificate signed by Dr. Kamm November 27, 2007, providing documentation. See id. Neither the Return to Work Certificate nor the Certificate of Disability provided that Dantes had been diagnosed with active tuberculosis (“TB”), nor did either document indicate that she had a positive TB skin prick.[4] See id. The document simply provided that Dantes was first treated on November 27, 2007 and “cannot carry-on conversation.” See id. Dantes never provided any documentation to Defendants indicating that she had active TB or even that she had tested positive for TB on a preliminary skin test at any time. See Record Document 49-5 at 7. In fact, there is no evidence in the record which establishes she was ever diagnosed with active TB.

         On July 14, 2008, Dantes filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging she had been discriminated against based on “being regarded as having a disability.” Record Document 49-4 at 2. On December 17, 2014, the EEOC issued a Notice of Right to Sue in connection with the complaint filed by Dantes. See Record Document 1-1. On March 9, 2015, Dantes filed the instant lawsuit alleging she was discharged by the Defendants because she was disabled due to her TB diagnosis. See Record Document 1 at 2-3. Defendants filed the instant Motion for Summary Judgment on April 2, 2018, arguing summary judgment is proper regarding her ADA claims because there is no genuine issues of material fact showing Dantes was (1) not disabled, (2) not qualified for the position in which she was employed, and (3) not discriminated against because of her alleged disability. See ...


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