Bennett v. Windstream Communications, Inc.

30 F. Supp. 3d 1243, 2014 WL 2938346, 2014 U.S. Dist. LEXIS 87681
CourtDistrict Court, N.D. Oklahoma
DecidedJune 27, 2014
DocketCase No. 13-CV-222-GKF-TLW
StatusPublished
Cited by8 cases

This text of 30 F. Supp. 3d 1243 (Bennett v. Windstream Communications, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. Windstream Communications, Inc., 30 F. Supp. 3d 1243, 2014 WL 2938346, 2014 U.S. Dist. LEXIS 87681 (N.D. Okla. 2014).

Opinion

OPINION AND ORDER

GREGORY K. FRIZZELL, Chief Judge.

Before the court is the Motion for Summary Judgment [Dkt. # 36] of defendant [1247]*1247Windstream Communications, Inc. (“Wind-stream”).

Susan G. Bennett (“Bennett”), a former technician for Windstream, sued the company for gender discrimination under Title VII (First Cause of Action); retaliation in violation of Title VII (Second Cause of Action); violation of the Oklahoma Antidis-crimination Act (“OADA”) (Third Cause of Action); age discrimination under the Age Discrimination in Employment Act (“ADEA”) (Fourth Cause of Action); and constructive discharge in violation of Oklahoma public policy and federal law (Fifth Cause of Action). Windstream seeks summary judgment on all of Bennett’s claims.

I. Material Facts

Windstream, a telecommunications company based in in Little Rock, Arkansas, provides services to both business and residential customers. In late 2011, Wind-stream acquired Paetec Communications, Inc. (“Paetec”), another telecommunications company. It took over operations effective on or about January 1, 2012. [Dkt. # 50, Ex. 3, Bennett Dep., 44:11-16].

Bennett, a 88-year veteran of the telecommunications industry, was a Fiber Optic Tech III (“FOTIII”) for Paetec at the time of the takeover. [Id., Ex. 12, Bennett Resume]. As a Fiber Optic Tech III, she was responsible for locating fiber optic cable, repairing, splicing and testing it, and performing preventative weekly and monthly maintenance of various sites. [Id., Ex. 3, Bennett Dep., 22:11-25; 30:11-25]. Her service area covered Stroud, Kiefer, Tulsa, Muskogee and Vian in Oklahoma and Van Burén and Ozark in Arkansas. [Dkt. # 36, Ex. 3, Bennett Dep., 23:22-25:2], Bennett sometimes travelled to Oklahoma City, Norman and Washington, Oklahoma to cover for another technician. [Id., 153:23-154:6].

Bennett’s pay and benefits remained the same after Windstream purchased Paetec. [Dkt. # 36, Ex. 5, Ginine Stover Dep., 32:9-23].

When Windstream took over, Bennett was working out of a regeneration (“re-gen”) site in Vian, Oklahoma. [Dkt. # 50, Ex. 3, Bennett Dep., 26:14-20], A regen site is a building where fiber optic cable goes through equipment that boosts the signal. [Id., Ex. 3, 26:10-15]. Bennett had a little office in the building. [Id., Ex. 3, 27:15-17].

Donald Rogers (“Rogers”), Area Manager of Operations for Windstream, was Todd Moore’s (“Moore”) direct supervisor during the time Moore was a local manager for Windstream. [Dkt. # 36, Ex. 4, Donald Rogers Declaration, ¶¶ 2, 4]. Following Windstream’s acquisition of Paetec, certain former Paetec technicians located in Oklahoma and Missouri — including Bennett — were placed under Moore’s supervision. [Id., ¶ 5]. Windstream’s Tulsa office became Bennett’s reporting site. [Id., ¶ 6].1 The other former Paetec technicians located in Oklahoma were also assigned to either the Tulsa office or a similar Wind-stream office located in Oklahoma City, depending on their service area. [Id., ¶ 7].2 No technicians were designated to report to the Vian regen site. [Id., Ex. 5, Stover Dep., 15:1-9].

After the takeover, Moore implemented a requirement that all technicians in his group report each morning at 8:00 a.m. to [1248]*1248their respective offices unless they had tasks to perform at another worksite. [Dkt. # 36, Ex. 4, Rogers Dec., ¶ 8; Ex. 6, 04/29/2012 Moore Email; Ex. 7, 05/25/2012 Moore Email]. The requirement applied to all technicians regardless of age or gender. [Id., Ex. 4, Rogers Dec., ¶ 8].3 Ginine Stover, a Human Resources Business Partner III at Windstream, testified that this requirement — while not a Windstream written policy — was a standard Wind-stream practice. [Id., Ex. 5, Stover Dep., 38:10-23],

Windstream’s People Practices manual states that “[r]egular attendance and punctuality are important job requirements, equally as important as other job performance expectations.” [Dkt. #36, Ex. 1, p. 29]. See also Ex. 1, p. 41 (“Regular attendance is an essential function of the job, equally as important as other job performance expectations.”). “Refusal to work or complete job duties” and “insubordination” are among the grounds justifying termination of employment. [Id., Ex. 1, p. 72],

Windstream has a telecommuting policy. [Dkt. # 36, Ex. 1, People Practices manual, p. 21]. However, Stover testified that Bennett’s job is not one where she could telecommute, so she would not be able to avail herself of this policy. [Dkt. # 50, Ex. 1, Stover Dep., 62:22-63:8]. Windstream also has a relocation policy. [Id., Ex. 8, p. 28]. However, Stover testified Bennett’s commute distance would not qualify her for any type of moving or relocation assistance from Windstream. [Id., Ex. 1, Sto-ver Dep., 63:12-20].

Finally, the People Practices manual has a section titled “Flexible Work Programs.” [Dkt. # 36, Ex. 1, pp. 54-55]. The section states, in pertinent part, “Managers have the discretion to design and implement flexible work programs that are most effective for their individual work groups given their business requirements,” and “the design of flexible work programs will be at each manager’s discretion.” [Id., pp. 55-56]. Stover testified that Windstream “ha[s] various schedules depending on the business needs and the number of days that we need to cover and what our commitments are to the customers.” [Dkt. #50, Ex. 1, 61:22-62:2], Stover testified Bennett never requested an accommodation from the requirement that she report to Tulsa at 8 a.m. [Id., 61:16-21]. When asked, “If Ms. Bennett had requested an accommodation for leave not to report each day at 8 a.m., would that have been considered under Windstream’s policies for a flexible work schedule?” Stover reT sponded, “I think what I define as flexible work schedule is the different shifts.... Monday through Friday, Tuesday through Saturday, Wednesday through Sunday ... But the standard business hours are 8 to 5.” [Id., 62:3-16]. Stover stated that, in Windstream’s opinion, the flexible work program could not have applied to Bennett’s situation. [Id., 64:19-22].4

[1249]*1249Rogers testified that one of the reasons technicians were required to report to the Tulsa office was due to the volume of work and the number of Windstream customers in the Tulsa and northeastern Oklahoma area. [Dkt. #36., Ex. 4, Rogers Dec., ¶ 9].5 Another reason technicians were required to report to the Tulsa and Oklahoma City offices was to enable the integration of Paetec into Windstream. A component of this integration involved cross-training, wherein Paetec technicians and Windstream technicians worked together in order to learn each other’s jobs and familiarize themselves with their counterparts’ equipment and procedures. [Id., ¶ 10].6 After the implementation of the reporting' requirement, no technicians were designated to report to the Yian re-gen site. [Id., Ex. 5, Stover Dep., 15:1-9].

Rogers testified that shortly after Wind-stream began requiring technicians to report to their assigned offices, Bennett advised him “that she ‘could not’ report to the Tulsa office at 8:00 a.m. due to its distance from her home in Gore, Oklahoma;” “[t]hereafter, Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
30 F. Supp. 3d 1243, 2014 WL 2938346, 2014 U.S. Dist. LEXIS 87681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-windstream-communications-inc-oknd-2014.