Vonderhaar v. AT&T Mobility Services, LLC et al, No. 2:2017cv00114 - Document 49 (E.D. Ky. 2019)
Court Description: MEMORANDUM OPINION & ORDER: 1. Defendant's motion for summary judgment 36 be and is hereby GRANTED; and 2. Plaintiff's claims be and are hereby DISMISSED WITH PREJUDICE A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 03/08/2019.(KRB)cc: COR
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Vonderhaar v. AT&T Mobility Services, LLC et al Doc. 49 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON CIVIL ACTION NO. 2:17 CV 114 (WOB CJS) VONDERHAAR VS. MEMORANDUM OPINION AND ORDER AT&T MOBILITY SERVICES, LLC ET AL. PLAINTIFF DEFENDANT Lawsuits under the Family Medical Leave Act FMLA typically involve the denial of FMLA leave time. This unusual employment case, however, arises from Plaintiff Kristina Vonderhaar s allegations that she was forced to take FMLA leave after reporting that her co- workers were making unauthorized changes to customer accounts. Shortly after returning to work, Plaintiff alleges she was mistreated. As a result, she voluntarily resigned and brought this lawsuit nearly two years later, asserting the following eight Count I: Count II: Count III: Count IV: Count V: Count VI: Count VII: )nterference with Rights Under the FMLA, Retaliation for Exercising FMLA Rights, U.S.C. § U.S.C. § )ntentional )nfliction of Emotional Distress ))ED counts: a a Negligent )nfliction of Emotional Distress N)ED Negligence/Vicarious Liability Wrongful Termination Based Upon Constructive Discharge. Punitive Damages Vonderhaar v. AT&T Mobility Servs., LLC et al. Dockets.Justia.com Count VIII: Causation and Damages Doc. This matter is now before the Court on Defendants motion for summary judgment . The Court previously heard oral argument on Defendants motions and took the matter under submission. Doc. . After further consideration, the Court now issues the following Memorandum Opinion and Order. A. FACTUAL AND PROCEDURAL BACKGROUND Alleged Misconduct in the Workplace Defendant AT&T Mobility Services, LLC AT&T hired Vonderhaar on September . Doc. - ,¶ . Throughout her employment with AT&T, Vonderhaar worked as a Retail Sales Consultant at the Maysville, Kentucky location. Id.; Doc. Vonderhaar reported to Jessica Webb, the store manager, until sometime in (oskins took over as store manager. Doc. - , Pl. s Dep. reported to Amy Waymire, the area retail sales manager. Id. at )n and , – – - , ¶ . There, when Fred . The store managers . , employee requests for FMLA leave time were processed by AT&T s FMLA Operations team located in San Antonio, Texas. Doc. - , ¶¶ – . This team was tasked with determining whether to approve or deny FMLA leave and would notify both the employee and their supervisor of the decision via e-mail. Doc. - at – . Significantly, an employee s supervisor or manager does not have access to medical documentation; nor do they have any input into the decision to approve or deny a request for FMLA leave. Doc. - ,¶ . Vonderhaar v. AT&T Mobility Servs., LLC et al. )n November and December of surgeries. Doc - at – , Vonderhaar underwent multiple hysterectomy . Around this same time, the FMLA Operations team received a certification from Vonderhaar s health care provider regarding the surgery. Doc. - ,¶ . The medical certification stated that intermittent leave was medically necessary for two days per week. Doc. - , Ex. . )n due course, the FMLA Operations team approved Vonderhaar s FMLA request. Id. at ¶ November , to February , . She then took continuous FLMA leave from . Id. at ¶ ; Doc. - at ; Doc. - , ¶ - at ; Doc. - ,¶ . When Vonderhaar returned, she resumed working in her same previous position, performed her usual duties, and earned the same salary. Doc. Vonderhaar testified that sometime near the end of . or early , AT&T s management informed employees of a change in policy, which was that going forward, adding temporary phone lines to customer accounts without authorization was prohibited. Doc. - at , . Notwithstanding the policy change, in February Vonderhaar alleges her co-workers added unauthorized temporary phone numbers to customer accounts. Doc. - at – ; Doc. - , ¶ . According to Vonderhaar, she informed the assistant store managers, (annah Eves and Tabitha Everman, that employees were making unauthorized changes to customer accounts. Doc. - at – . Vonderhaar, however, did not report the alleged misconduct to Waymire, AT&T s Ethics (otline, or any public entity. Specifically, Vonderhaar testified that one co-worker confided in her that he was going to add a temporary phone number to a customer s account so that he could meet his sales numbers. Doc. - at . But Vonderhaar admits she never witnessed the transaction. Id. Vonderhaar v. AT&T Mobility Servs., LLC et al. Doc. - at , , . Roughly a month later, on March , , the FMLA Operations team received a second medical certification from Vonderhaar s health care provider, signed March , , indicating that Vonderhaar suffered from heart palpitations and was incapacitated from February , to March , . Doc. - , Ex. ; see id. at ¶ . This certification, however, stated that intermittent leave was not medically necessary. Doc. - , Ex. . Nonetheless, the FLMA Operations team approved Vonderhaar for intermittent FMLA leave on nine dates. On or about April , , Vonderhaar verbally reported to Eaves that a co-worker had added an extra line to an existing customer s account by signing a two-year contract without the customer being present at the store. Doc. - , ¶ ; Doc. Contrary to company policy, the transaction took place over the phone. Doc. On April , - – at . . , after her conversation with Eaves, Vonderhaar utilized AT&T s anonymous, third-party operated Ethics (otline to report the incident. Doc. ¶ - at - at – . As a result, AT&T s (R department launched an investigation on April ; Doc. , - , . Doc. The nine particular dates are: February , . hours ; February , . hours ; March , . hours ; March , hours ; March , hours ; March , . hours ; April , . hours ; April , . hours ; and April , hours . Doc. - , Ex. at – , , , , ; Doc. - , ¶ . Contrary to the allegations in the Complaint, Vonderhaar testified that she did not initially report the incident to Waymire but may have discussed it with her at a later date. Doc. at . )n addition, Vonderhaar did not address her concerns to any public agency. Doc. - at . Vonderhaar v. AT&T Mobility Servs., LLC et al. - ,¶ . After Eaves and the accused co-worker were interviewed, it was concluded that the allegations were unsubstantiated. Id.; Doc. B. - ,¶ . Vonderhaar’s Workplace Conduct Vonderhaar, like other AT&T employees, received regular training on AT&T s Code of Business Conduct COBC and was aware of her obligation to treat others professionally and respectfully in the workplace. Doc. - at – . AT&T also maintained a progressive discipline and attendance policy. Under AT&T s Attendance Guidelines, infractions were assigned a point value in to full point. Doc. increments depending on the degree of tardiness, ranging from - , Ex. employee: a Counseling Notice at at . Discipline was carried out by issuing the points; a Written Warning at Warning at points; and Termination at points. Id. (owever, infraction, the associated point value is extinguished. Id. On February absences. Doc. , - at points; a Final Written days after an attendance , Vonderhaar received a Counseling Notice for four unexcused . A Written Warning was sent to Vonderhaar on March , after an additional unexcused absence. Id. at . , The investigation was closed on August , . By that time, Vonderhaar was no longer employed by AT&T. Doc. - , ¶ . The investigation report concluded that the accused co-worker was following up with the customer and making the situation right since the order cancelled in the system and she was unreserving the equipment and following up with the equipment so it would be ready when the customer arrived. Doc. - at . The scale is as follows: – minutes grace period; – minutes minutes point; to minutes point; minutes or more day point. Doc. - , Ex. at . Vonderhaar v. AT&T Mobility Servs., LLC et al. point; – point; one full But attendance was not the only issue. On March , , Vonderhaar s store manager at the time, (oskins, reported an incident to AT&T s (R department, in which Vonderhaar was reported to have yelled and directed profanity toward another co-worker. Doc. Doc. - ,¶ ; Doc. - , ¶¶ – . - at – . Vonderhaar was never disciplined for this incident. Shortly thereafter, on March , , (oskins was informed that Vonderhaar had again used profanity with two different co-workers in a conversation about the company s new attendance policy. Id. at ¶¶ , . Vonderhaar does not recall this incident. Doc. - at . )t is undisputed, however, that (oskins met with Vonderhaar. According to (oskins, he discussed the incident with Vonderhaar, reminded her of appropriate workplace behavior, and documented the conversation. Doc. - ,¶ ; Doc. - at . Vonderhaar recalls differently, and claims she was singled out by (oskins to discuss the new attendance policy because she was concerned about how it would affect her FMLA. Doc. - at , . Vonderhaar alleges that in that meeting, (oskins told her not to worry about [the new attendance policy], we ll cross that bridge when we get there. Don t worry about the FMLA, [and] how that will affect you. Id. at , – . )n either event, Vonderhaar was not disciplined for this incident. Id. That same day March , Vonderhaar states she experienced a panic attack at work and Eaves drove her to the hospital. Doc. She was prescribed anxiety medication and released the same day. Id. at , . - at . Since April , Vonderhaar testifies: i she has been taking milligrams of an anxiety medication, Ativan, as needed or twice a day, Doc. - at ; ii she has suffered one or two panic attacks, which did not result in hospitalization, id. at – ; and iii she Vonderhaar v. AT&T Mobility Servs., LLC et al. On April , , Vonderhaar received a Final Written Warning for having accrued a total of six unexcused absences between November at , and April , . Doc. - . The next day, Waymire met with Vonderhaar, (oskins, and Eaves. )n the meeting, Vonderhaar recalls her managers repeatedly asking, what was going on and whether she was having issues or problems. Doc. - at . )n addition, Vonderhaar alleges she was told that she was resentful to the company, her hormones were not in check, and that she should take an unpaid leave-of-absence so that she did not lose her job. Doc. at – ; Doc. - , ¶ - . When Vonderhaar refused because she could not afford to go without a paycheck, Waymire allegedly suggested she take the leave-of-absence in the form of FMLA leave and short-term disability in order to cover her wages. Doc. Vonderhaar eventually agreed and that day took . Doc. - , Ex. at - ,¶ . ; see Doc. - , ¶ disability benefits from April , . to May , hours of intermittent FMLA leave. Thereafter, Vonderhaar took continuous FMLA leave from April . Doc. - at , . )n addition, Vonderhaar received short-term to May , Vonderhaar phoned AT&T s Ethics (otline on May , . Doc. - ,¶ . While on leave, , and reported that Waymire had does not experience anxiety symptoms every day. Id. )nsofar as treatment goes, Vonderhaar visits Dr. Carmen Woolums, a family practice physician, once every three months to follow-up on the dosage and effectiveness of the anxiety medication. Id. at . Vonderhaar s physician submitted a medical certification, stating that intermittent leave was medically necessary from March , to April , . Doc. - at – ; Doc. - , Ex. . Vonderhaar v. AT&T Mobility Servs., LLC et al. forced her to take a leave of absence in retaliation for reporting the unauthorized changes to customer accounts. Doc. - at – . An investigation was conducted by AT&T s (R department and was eventually closed when Vonderhaar s allegations of retaliation and violations of company policy could not be substantiated. Doc. - , ¶¶ – . When Vonderhaar returned to work, she was reinstated to her previous position, performing the same job duties and earning the same salary. Doc. - at . At this time, of insurance to customer accounts without authorization. Doc. - , ¶ . Vonderhaar the accounts but never stated the specifics of the alleged misconduct. Doc. - at Vonderhaar alleges she witnessed multiple instances where her co-workers added the cost testified that she informed Waymire and (oskins that fraud was still being committed on – . )ndeed, Vonderhaar admits that she never filed a complaint via the Ethics (otline; nor did she contact a public agency to report that insurance charges were being added without authorization. Id. at – . After returning from her forced FMLA leave of absence, Vonderhaar admits that she was never denied FMLA leave. Doc. - at approved to take . hours of FMLA leave on May June , . Doc. - , Ex. at , . . )n fact, Vonderhaar requested and was , , and hours of FMLA leave on Vonderhaar avers that after she returned to work at the end of May , she was The investigation was closed on July , , at which time Vonderhaar was no longer employed by AT&T. Doc. - , ¶ . Nonetheless, the individual assigned to the case informed Vonderhaar that the investigation was complete. Id. Vonderhaar v. AT&T Mobility Servs., LLC et al. being treated different. Doc. - at intervene, Doc. ; – . )n particular, Vonderhaar claims that: she was verbally attacked by a customer in the middle of the sales floor and (oskins failed to - at – she was not receiving coaching sessions from (oskins and was not informed of her sales goal for the portion of May her FMLA leave, id. at , ; and when she returned from she felt like Waymire was indifferent toward her and would ignore her and not even make eye contact. Id. at – . On the other hand, Vonderhaar also testified that when she returned to work, she was never demoted; her job responsibilities were never reduced; she received the same salary; and management never told her she was being terminated. Id. at , , – . Nevertheless, on June , , Vonderhaar sent an e-mail to Waymire and others, informing them she was resigning, effective June , . Doc. - . The reason for her decision, she explained, is that: [C]ertain individuals have been allowed to cross certain boundaries that the rest of the staff and myself would never dare cross resulting in fraud to the be perpetrated on customer accounts with no repercussions . . . . Since my return ) don t feel welcome by certain members of management and feel it best if ) step down. Id. Vonderhaar then exhausted vacation time from June resignation became effective. Doc. - ,¶ through June , , when her . According to Vonderhaar s own testimony, all of her requests for FLMA leave over the course of her employment with AT&T were But contrary to Vonderhaar s averments, AT&T s sales consultants can access their up-todate sales goals and metrics on a daily basis through the company s intranet system. Moreover, unless an employee is on an active step of discipline for job performance, managers at AT&T are not required to conduct coaching sessions on a daily basis. Doc. , ¶¶ – . When Vonderhaar returned from FMLA leave in May , she was not on an active step of performance discipline. Id. at ¶ . Vonderhaar v. AT&T Mobility Servs., LLC et al. approved. Doc. had . - at , . )n fact, when she resigned from her position, Vonderharr hours of FMLA leave remaining. Doc. - at . Nearly two years after resigning, Vonderhaar brought this lawsuit alleging violations of the FMLA, U.S.C. §§ et seq., and that she had been constructively discharged. LEGAL STANDARD Summary judgment under Rule is appropriate only when the Court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. – ; Anderson v. Liberty Lobby, Inc., a ; Celotex Corp. v. Catrett, U.S. , – U.S. , . A genuine issue of material fact exists when, there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. White v. Wyndham Vacation Ownership, Inc., F. d , – th Cir. emphasis added quoting Anderson, U.S. at . When the issue is a pure question of law, extraneous facts that do not bear on that question are immaterial. See, e.g., Chappell v. City of Cleveland, citing Scott, I. U.S. at n. . F. d , – th Cir. ANALYSIS FMLA CLAIMS (COUNTS I & II) A. Procedural Defects In Vonderhaar’s Response Brief Before turning to the merits of Vonderhaar s averments, the Court will address the allegations and theories of recovery concerning Vonderharr s FMLA claims that are properly Vonderhaar v. AT&T Mobility Servs., LLC et al. before this Court for consideration. Pursuant to U.S.C. § a , Vonderhaar asserts an FMLA interference claim in Count ), alleging that she was denied FMLA benefits because Defendants forc[ed] her to take FMLA leave on April , in retaliation for her failure and/or refusal to violate the law . . . thus depleting [her] FMLA entitlement. Doc. - , ¶¶ , . )n Count )), Vonderhaar asserts that Defendants retaliated against her by constructively terminating her from her position because she exercised her rights under the FMLA in violation of a . Doc. - , ¶ U.S.C. § . (owever, Vonderhaar unequivocally testified at deposition that all of her requests for FLMA leave time were approved by AT&T. Doc. - at , . Yet Vonderhaar claims otherwise in her brief in response to Defendants motion for summary judgment. Vonderhaar s last-ditch effort to stave off summary judgment is unavailing. )t is well established that: [)]f the party opposing the motion disagrees with the movant s characterization of material facts as undisputed the opposing party may address the movant s factual contentions only by: [ ] Citing to particular parts of the record . . . ; or [ ] Showing that the materials cited by the movant do not establish the absence of a genuine dispute. James W. Moore et al., MOORE S FEDERAL PRACT)CE § . emphasis added [hereinafter MOORE S ]; Fed. R. Civ. P. Matthew Bender d ed. c . Merely making bald assertions in a legal memorandum . . . will not enable the nonmovant to withstand a properly supported § . summary citing Morrison v. Bd. of Educ., judgment F. d , motion. th Cir. Vonderhaar v. AT&T Mobility Servs., LLC et al. Id. . The problem here is that Vonderhaar has failed to properly oppose Defendants motion with evidence in the record. )nstead, Vonderhaar has effectively attempted to amend her Complaint in her response brief by asserting new facts and theories that blatantly contradict her own deposition testimony. Specifically, she alleges she was denied FMLA leave on February , February , and February theory is flawed for two reasons: , . See Doc. at . But Vonderhaar s the allegations are not found in the Complaint; and the claim is not supported by evidence in the record. First, it is cardinal rule that a plaintiff may not expand [her] claims to assert new theories for the first time in response to a summary judgment motion. Desparois v. Perrysburg Exempted Vill. Sch. Dist., F. d Music, Inc. v. WB Music Corp., F. App x Needletrades, Indus. and Textile Employees, , , th Cir. F. d , th Cir. citing Bridgeport ; see also Tucker v. Union of th Cir. holding that a plaintiff may not raise a new legal claim in response to summary judgment . )ndeed, the Sixth Circuit recently reiterated this very principle. Alexander v. Carter, Cir. F. App x , th . To permit otherwise would subject Defendants to unfair surprise. Id.; Renner v. Ford Motor Co., F. App x , th Cir. citation omitted . That is because by this point a plaintiff has had the opportunity to . . . amend the complaint to reflect new theories. Desparois, F. App x at . (ere, Vonderhaar has improperly raised theories of recovery for the first time. The rule prohibiting this tactic is especially applicable in this case because the Complaint only vaguely mentions in passing that Defendants denied [Vonderhaar] FMLA benefits when Vonderhaar v. AT&T Mobility Servs., LLC et al. they forc[ed] [Vonderhaar] to take FMLA leave. Doc. - , ¶ . And in her deposition, Vonderhaar testified that all of her FMLA requests were approved and that Defendants were simply defending an involuntary FMLA leave claim. Doc. - at , . Therefore, Vonderhaar cannot now pursue a claim for the denial of FMLA benefits under § a . U.S.C. Second, Vonderhaar cannot sustain a claim for the denial of FMLA benefits because she has not adduced any evidence that she requested and was entitled to FMLA leave for the three dates in February . Doc. at . To be entitled to FMLA leave, an employee must both notify [their] employer of [the] need to take leave and state a qualifying reason for leave. Levaine v. Tower Auto. Operations USA I, LLC, F. App x , th Cir. denying FMLA claim where employee merely believed he was entitled to FMLA leave for a particular date that he received a disciplinary write-up ; Sybra, Inc., F. d , th Cir. C.F.R. § . b ; Donald v. stating elements of FMLA interference claim . (ere, the recently contrived contentions Vonderhaar raises in her response brief are bereft of any citation to record evidence. See Doc. . at asserts that she was denied FMLA leave on February , – , and . Rather, Vonderhaar simply . Doc. at . A review of the record, however, reveals there is no medical certification, e-mail, or request form before the Court concerning these dates. Festerman v. Cty. of Wayne, th Cir. F. App x , stating that merely calling in sick is insufficient to trigger any obligation of the employer under the FMLA. . )n fact, Vonderhaar s FMLA leave documents plainly demonstrate that her absence on February , , was later approved as FMLA leave and Vonderhaar v. AT&T Mobility Servs., LLC et al. removed from her discipline record before she was issued her Final Written Warning. Doc. - at ; Doc. - at . The record is simply devoid of any evidence to support the notion that Vonderhaar was denied FMLA leave. Thus, the factual contentions Vonderhaar has raised for the first time at this stage are not properly before the Court and will not be considered. Consequently, where appropriate, the Court will consider the facts asserted by Defendants as undisputed for purposes of the motion. Civ. P. e ; id. at § . b . MOORE S § . citing Fed. R. Therefore, the only issues pertaining to Vonderhaar s FMLA claims are i whether she has stated an FMLA claim under an involuntary-leave theory; and ii whether she was retaliated against for exercising her FMLA rights. B. Vonderhaar’s FMLA Interference Claim (Count I) Fails to Satisfy the “Involuntary Leave” Theory of Recovery. )n light of the above conclusion, the sole premise of Vonderhaar s interference claim is that she was involuntarily placed on FMLA leave. Doc. - , ¶ . The Sixth Circuit has recognized that an involuntary-leave claim is actionable under U.S.C. § a , where an employer forces an employee to take FMLA leave when the employee does not have a serious health condition that precludes her from working. Wysong v. Dow Chem. Co., F. d , U.S. App. LEX)S cert. denied, th Cir. U.S. , WL quoting Hicks v. LeRoy’s Jewelers, Inc., No. , at * – th Cir. July , - , unpublished , . But there is one caveat. An involuntary-leave claim ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past. Id. Vonderhaar v. AT&T Mobility Servs., LLC et al. emphasis added . (ere, Vonderhaar alleges that she was forced to take FMLA leave on April and took continuous FMLA leave from April - at ; see also Doc. leave claim. Wysong, - ,¶ to May , . Doc. - , ¶¶ – , , ; Doc. . But this, in itself, does not create a ripe, involuntary- F. d at . Vonderhaar would have had to allege also that she later requested FMLA leave, but that [AT&T] refused, based on the fact that she had already used up her available FMLA leave. Id. That allegation is absent from Vonderhaar s Complaint and is otherwise unsupported by the evidence in the record. The linchpin on summary judgment, however, is the undisputed fact that when Vonderhaar resigned she had . hours of FMLA leave remaining. Doc. that, Vonderhaar had returned to work at the end of May - at . Before after allegedly being forced to take FMLA leave. She then requested, was approved, and took . hours of FMLA leave on May . , , and hours of FMLA leave on June , hours of FMLA leave unused. Doc. - at . Doc. - , Ex. at , , leaving . As such, Vonderhaar was never unable to take FMLA leave because she had previously been forced to expend her FMLA allotment. Wysong, at Oct. , F. d at . Therefore, as a matter of law, Vonderhaar s involuntary-leave claim fails. See, e.g., Id. ; Monroe v. Consumers Energy, No. - , U.S. App. LEX)S , at * th Cir. plaintiff failed to state a claim under the FMLA because she did not allege that she was unable to take leave because defendant had previously required her to use up her leave ; Huffman v. Speedway LLC, F. App x , th Cir. Vonderhaar v. AT&T Mobility Servs., LLC et al. plaintiff never requested FMLA leave and so her involuntary-leave claim remain[ed] unripe. ; Latowski v. Northwoods Nursing Ctr., F. App x , th Cir. same . C. Vonderhaar was Not Subjected to an Adverse Employment Action as a Consequence for Taking FMLA Leave, and Therefore Vonderhaar’s Retaliation Claim (Count II) Fails. )n Count )), Vonderhaar claims she was retaliated against because she went on FMLA leave. Doc. - , ¶ . Because Vonderhaar relies on indirect evidence to establish a causal connection between the protected activity and any adverse employment action, the familiar McDonnell Douglas burden-shifting framework is applied, under which Vonderhaar must first state a prima facie case of retaliation. Donald, F. d a , th Cir. F. d at – ; Edgar v. JAC Prods., . To state a prima facie case of retaliation under of the FMLA, Vonderhaar must establish that: U.S.C. § she was engaged in an activity protected by the FMLA; the employer knew that she was exercising her rights under the FMLA; after learning of the employee s exercise of FMLA rights, the employer took an employment action adverse to her; and there was a causal connection between the protected FMLA activity and the adverse employment action. Donald, F. d at . Vonderhaar has failed to state a prima facie case because she has not shown that she suffered an adverse employment action. Vonderhaar does not argue that she was terminated. )nstead, Vonderhaar asserts that AT&T retaliated against her by constructively terminating her from her position because she exercised her rights under the FMLA. Doc. - , ¶ , . Constructive discharge is hard to prove. Groening v. Glen Lake Cmty. Sch., th Cir. . The employee must demonstrate that F. d her working conditions Vonderhaar v. AT&T Mobility Servs., LLC et al. were objectively intolerable ; and her employer deliberately created those conditions in hopes that they would force her to quit. Id. (owever, [t]he employee has an obligation not to assume the worst, and not to jump to conclusions too fast. McDonald v. UAW GM Ctr. F. App x for Human Res., , th Cir. citation omitted . As to the first element, working conditions are objectively intolerable where a reasonable person in the plaintiff s shoes would feel compelled to resign. Festerman v. Cty. of Wayne, F. App x , – th Cir. . To determine whether a reasonable person would have felt compelled to resign, the Sixth Circuit considers the following factors singly or in combination : demotion; reduction in salary; reduction in job responsibilities; reassignment to menial or degrading work; reassignment to work under a [male] supervisor; badgering, harassment, or humiliation by the employer calculated to encourage the employee s resignation; or offers of early retirement or continued employment on terms less favorable than the employee s former status. F. App x Russell v. CSK Auto Corp., F. d Modular Components, Inc., , , th Cir. th Cir. ; Saroli v. Automation & . (ere, each time Vonderhaar returned from FMLA leave, she admits that she was reinstated to the same previous position, performed her usual duties, earned the same salary, and she was never demoted. Doc. , Pl. s Dep. at , , – . - )n addition, it remains undisputed that Vonderhaar returned to work under the same supervisor, (oskins. Doc. - ,¶ . As such, Vonderhaar Any retaliation that Vonderhaar alleges she was the victim of as a result of reporting her co-workings for fraudulent activity is, of course, not a protected activity under the FMLA, and therefore is irrelevant to Vonderhaar s FMLA retaliation claim. Vonderhaar v. AT&T Mobility Servs., LLC et al. has failed to show that she was constructively discharged. Although Vonderhaar believes otherwise and submits that she suffered a reduction in salary, reduction in job responsibilities, [and] reassignment to different work, Doc. at , this conclusory statement is made without a citation to the record and directly contradicts her own deposition testimony. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, . . . a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Scott v. Harris, U.S. , . Thus, Vonderhaar s naked proffer is insufficient to defeat summary judgment. Vonderhaar, however, contends there are four additional facts that show that she was constructively discharged. The law holds otherwise. First, Vonderhaar avers that (oskins failed to intervene when she was verbally attacked by a customer in the middle of the sales floor. Doc. - at – . But this is merely an isolated incident involving the actions of a third-party, and therefore does not amount to constructive discharge. See Cleveland v. S. Disposal Waste Connections, , th Cir. . F. App x Second, Vonderhaar maintains she did not receive coaching sessions from (oskins and was not informed of her sales goal for the portion of May FMLA leave. Doc. - at , when she returned from . To constitute an adverse employment action, the act of an employer failing to train an employee must result in a deprivation of increased compensation, Clay v. United Parcel Service, Inc., F. d , Vonderhaar v. AT&T Mobility Servs., LLC et al. th Cir. , or being passed up for promotions. Vaughn v. Louisville Water Co., . F. App x , th Cir. (ere, there is no evidence that Vonderhaar was deprived of the opportunity to serve in a position with a higher pay rate as a result of allegedly not receiving coaching sessions. See Clay, F. d at . Moreover, the record demonstrates that Vonderhaar was treated no differently than other similarly situated employees. )n other words, Vonderhaar has presented no evidence to refute the fact that: a managers provide coaching sessions only for those employees on an active step of discipline for job performance, which Vonderhaar was not, Doc. - , ¶¶ – ; and b all of AT&T s sales consultants are able to access their sale goals and metrics on a daily basis via the company s intranet system. Id. at ¶ . Thus, Vonderhaar was not constructively discharged simply because she did not receive coaching sessions. Next, Vonderhaar states that she felt like Waymire was indifferent toward her and would ignore her and not even make eye contact. Doc. - at – . But [h]urt feelings, without more, is insufficient to constitute intolerable working conditions. Festerman, F. App x at . Finally, Vonderhaar alleges she was subjected to badgering/harassment/ humiliation by her employer regarding her hysterectomy. See Doc. at – . Putting aside the conclusory nature of the statement, the only harassment that can presumably be gleaned from the record is again an isolated incident that Vonderhaar testified occurred in a meeting, in which Vonderhaar s managers allegedly told her that her hormones were not in Vonderhaar v. AT&T Mobility Servs., LLC et al. check. Doc. - at – ; Doc. - , ¶ . This fleeting comment, as opposed to remarks that span the course of Vonderhaar s employment, cannot not form the basis of a colorable FMLA retaliation claim even if the comment was construed to be related to the exercise of her FMLA-protected rights. Weigold v. ABC Appliance Co., th Cir. ; Smith v. Henderson, F. d , th Cir. F. App x , calling an employee incompetent and a whiner in front of other employees is, by itself, insufficient to establish constructive discharge ; Cleveland, F. App x at [D]isparaging comments . . . isolated to only a few incidents and by a few individuals is not pervasive enough to significantly alter [an employee s] working conditions. . )ndeed, the Sixth Circuit recently concluded that a defendant-employer was entitled to summary judgment despite that plaintiff s manager had made comments to plaintiff over the course of three to four months degrading her and calling her stupid during their daily coaching sessions ; telling her that everyone in the office hated her and did not want her there ; and that she needed to seek psychological help and seek help from the employee assistance program. Brister v. Mich. Bell Tel. Co., F. App x , th Cir. . Viewed against this backdrop, Vonderhaar s constructive discharge allegations pale in comparison. Vonderhaar s work environment may have been less than ideal, but Even assuming arguendo that any of the allegations constitute an adverse employment action, there is no evidence Defendants acted specifically because [Vonderhaar] invoked [her] FMLA rights. Levaine v. Tower Auto. Operations USA I, LLC, F. App x , th Cir. emphasis in original quoting Edgar v. JAC Prods., Inc., F. d , th Cir. . The fact that Defendants allegedly forced Vonderhaar to take FMLA leave undermines any result to the contrary. Vonderhaar v. AT&T Mobility Servs., LLC et al. contrary to her perception it cannot be said that the handwriting was on the wall and the axe was about to fall such that resignation was a fitting response. Laster v. City of Kalamazoo, F. d th Cir. , th Cir. quoting EEOC v. Univ. of Chicago Hosp., F. d internal quotations and citation omitted . , Vonderhaar s employment conditions, taken together or in isolation, as a matter of law fall short of the intolerable working conditions that would cause a reasonable person to feel compelled to resign. She, therefore, has failed to establish an adverse employment action. II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (COUNT III) At the heart of an intentional infliction of emotional distress claim, there must be conduct by the wrongdoer that is outrageous and intolerable such that it offends generally accepted standards of decency and morality. Andrew v. Begley, App. citing Kroger Co. v. Willgruber, S.W. d S.W. d , Ky. . , Ky. Ct. )t is for the court to determine, in the first instance, whether the defendant s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Pierce v. Commonwealth Life Ins. Co., n. h F. d , th Cir. quoting Restatement Second of Torts § ; Stringer v. Wal Mart Stores, Inc., S.W. d , – Ky. cmt. . To that )n particular, a plaintiff must establish the following four elements: the defendant s conduct was intentional or reckless ; the conduct was outrageous and intolerable such that it offends generally accepted standards of decency and morality ; there is a causal connection between the wrongdoer s conduct and the emotional distress ; and the emotional distress caused was severe. Willgruber, S.W. d at quoting Craft, S.W. d at . Vonderhaar v. AT&T Mobility Servs., LLC et al. end, the conduct at issue must transcend all reasonable bounds of decency and be considered utterly intolerable in a civilized community. Stringer v. Wal Mart Stores, Inc., S.W. d at quoting Craft v. Rice, S.W. d , Ky. . The law simply does not compensate a victim of conduct that involves petty insults, unkind words and minor indignities or that is merely cold, callous and lacking sensitivity. S.W. d Osborne v. Payne, , Ky. . (ere, the same salient facts outlined under Vonderhaar s retaliation claim are relevant. As such, because Vonderhaar s working conditions were not intolerable, objectively it follows that Defendants alleged actions cannot be deemed intolerable in a civilized community. Corp., utterly The alleged behavior in this case involves, at most, an isolated insult, Meade v. AT&T F. App x , th Cir. , or the loss of employment and resulting emotional distress, Miracle v. Bell Cty. Emergency Med. Servs., S.W. d , Ky. But such conduct does not support a claim for ))ED. See also Marshall v. Rawlings Co. LLC, F. d , th Cir. . holding that [m]aking a snide remark about taking leave, telling an employee she is not doing her job effectively during a demotion meeting, and creating an awkward situation at lunch does not rise to the level of extreme and outrageous conduct . Vonderhaar s ))ED claim also fails because she has not shown that her emotional Vonderhaar misrepresents her sworn deposition testimony. Compare Doc. with Doc. - , Pl. s Dep. at , , – . Vonderhaar v. AT&T Mobility Servs., LLC et al. at , , injury qualifies as serious or severe. An emotional injury qualifies as serious or severe where: A reasonable person, normally constituted, would not be expected to endure the mental stress engendered by the circumstances of the case. Distress that does not significantly affect the plaintiff s everyday life or require significant treatment will not suffice. And a plaintiff claiming emotional distress damages must present expert medical or scientific proof to support the claimed injury or impairment. Osborne, S.W. d at internal citations and footnotes omitted . )t is readily apparent that Vonderhaar has not experienced emotional distress that rises to the requisite level of severity needed to sustain an ))ED claim. )n particular, Vonderhaar candidly admits that: i she has only had two panic attacks since being employed with AT&T; ii she takes medication only as needed or twice a day ; iii she visits her family physician, at most, only once every three months ; and iv she experiences sporadic symptoms depend[ing] on what s going on. Doc. - at – , . Moreover, Vonderhaar has presented only her own assertions to support her alleged emotional distress. Keaton v. G.C. Williams Funeral Home, Inc., App. S.W. d , Ky. Ct. affirming summary judgment in favor of defendants because plaintiffs presented only their own statements that [they] suffered severe emotional distress . As such, Vonderhaar s claimed injury does not meet the standard for serious or severe emotional distress. III. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (COUNT IV) To establish a claim for negligent infliction of emotional distress N)ED , a plaintiff must first establish the general elements of negligence: duty; breach; Vonderhaar v. AT&T Mobility Servs., LLC et al. injury; and legal causation between the defendant s breach and the plaintiff s injury. Osborne v. Keeney, S.W. d , Ky. . As with ))ED, however, an N)ED claim also requires a showing of serious or severe emotional distress. Crook v. Maguire, No. Ky. App. LEX)S , at * Ky. Ct. App. May , -CA- citing Osborne, -MR, S.W. d at . For the same reasons stated above, it is this requirement that Vonderhaar fails to meet. IV. WRONGFUL TERMINATION (COUNT VI) The last substantive Count in the complaint is Vonderhaar s wrongful-termination claim, which is premised on a constructive discharge theory. Under Kentucky law, it is well established that an employer may terminate an employee for good cause, for no cause, or for a cause that some might view as morally indefensible. Smith v. LHC Grp., Inc., , Ky. th Cir. quoting Firestone Textile Co. Div. v. Meadows, S.W. d F. App x , . A cause of action exists, however, under a narrow public policy exception that applies in only three circumstances: where there are explicit legislative statements prohibiting the discharge, where the alleged reason for the discharge . . . was the employee s failure or refusal to violate a law in the course of employment, or when the reason for the discharge was the employee s exercise of a right conferred by well-established legislative enactment. Mitchell v. Univ. of Ky., , Ky. . S.W. d , Ky. Hill v. Ky. Lottery Corp., S.W. d (ere, Vonderhaar s claim arises under the second situation. That is, Vonderhaar asserts that she was constructively discharged for her failure and/or refusal to violate various State and federal laws or otherwise remain complicit with fraud. Vonderhaar v. AT&T Mobility Servs., LLC et al. Doc. - , ¶ ; Doc. - at , . Vonderhaar s theory fails. )n limited circumstances, requiring an employee to engage in activity she considers illegal and immoral may create intolerable working conditions necessary to sustain allegations of constructive discharge. Smith v. LHC Grp., Inc., F. App x , th Cir. . But in contrast to Smith, AT&T did not ignore[] [Vonderhaar] s complaints of illegal activity. Id. Rather, a thorough investigation was conducted after each of her reports and the allegations were found to be unsubstantiated. Doc. - ,¶ ; Doc. - , ¶¶ – . And most significantly, Vonderhaar, unlike Smith, was not required to make unauthorized changes to customer accounts or otherwise [become] entangled in her coworkers failure to [adhere to company policy] by virtue of her position as a retail sales floor associate. Id. As such, the conduct of Vonderhaar s co-workers has no impact on her working conditions in this case, and her wrongful-termination claim therefore fails. To be sure, Vonderhaar s claim falters because the basis for her claim does not fit within the applicable well-defined public policy exception. Grzyb v. Evans, Ky. S.W. d , . A plaintiff can satisfy the relevant public policy exception: i where an employer affirmatively requests that the employee violate the law ; or ii when an The specific laws allegedly at issue are: a the Communications Act of , U.C.S. §§ et seq.; b Truth-in-Billing Requirements, C.F.R. § . ; c KRS §§ . , . switching of telecommunications provider ; d KRS §§ . et seq. theft ; §§ . et seq. forgery ; e KRS § . et seq. nonexistent ; and f the Kentucky Consumer Protection Act, KRS § . et seq. See. Doc. - , ¶ . The decision of whether the public policy asserted meets these criteria is a question of law for the court to decide, not a question of fact. Grzyb, S.W. d at . Vonderhaar v. AT&T Mobility Servs., LLC et al. employee learns of illegal activity and, although not directly invited to participate by his employer, knows he will inevitably become complicit in the illegality by performing his normal work responsibilities. Alexander v. Eagle Mfg. Co., LLC, Cir. ; Smith, F. App x at F. App x , th . )n Alexander the plaintiff was terminated outright for discovering and reporting illegal conduct. See id. at . On appeal, he maintained he would become complicit in unlawful activity by signing off on engine blocks he knew were defective, a practice he witnessed, objected to, and refused to follow. Id. at – . )n this case, Vonderhaar testified that she was never asked by her managers to: sign a contract for a customer without the customer being present at the store, Doc. , id. at ; – - at add the cost of insurance to customer accounts without informing the customer, ; or violate the law in any way. Id. at . )nstead, the basis for her claim is that she became aware of assistant manager Eaves discounting a transaction for a co-worker who, while speaking to a customer over the phone, had signed a two-year agreement in the customer s name and added a line of service to an electronic device that Vonderhaar had originally sold. Doc. - at , – ; Doc. - at . As a result, Vonderhaar brought the information to assistant manager Eaves s attention and then later reported the incident via AT&T s anonymous Ethics (otline. Id. at ; Doc. - , Rep. & )nvestigation at , . Vonderhaar reasons that by refusing to remain complicit in another employee s forging of a customer s signature . . . she set off a chain of events that culminated in her constructive discharge. Doc. at . The defect in Vonderhaar s theory, as in Alexander, is that it is not evident from this Vonderhaar v. AT&T Mobility Servs., LLC et al. isolated incident that she would have inevitably been forced to participate or become complicit in any illegal activity. F. App x at . Even if Vonderhaar were the sole sales consultant at her store location, and unauthorized changes to customer accounts were systematic, it would be unreasonable to infer that somehow Vonderhaar was complicit simply because the fraudulent activity involved a customer with which Vonderhaar previously had dealings. Id. Thus, like Alexander, although [her] coworkers may have been engaging in illegal activity, [Vonderhaar, herself], was never affirmatively asked to violate the law, nor did [her] position make it inevitable that she would be forced to do so. Id. Simply put, the conduct of Vonderhaar s co-workers is separate and apart from her job responsibilities. Therefore, Kentucky s public policy exception to the employment-at-will doctrine does not embrace Vonderhaar s claim, and therefore Vonderhaar has failed to show that she was constructively discharged. V. VICARIOUS LIABILITY/NEGLIGENCE (COUNT V), PUNITIVE DAMAGES (COUNT VII), AND CAUSATION AND DAMAGES (COUNT VIII), ARE NOT INDEPENDENT CAUSES OF ACTION. )n Count V, Vonderhaar asserts a claim for vicarious liability based on the negligence of Defendants agents. But the doctrine of respondeat superior is not a cause of action. )t is a basis for holding the [Defendant] responsible for the acts of its agents. O’Bryan v. Holy See, Vonderhaar also lacks a right of action under Kentucky s whistleblower statute because that provision only covers public employees, see KRS § . , and the protection has not been extended to private employees. See Beach v. ResCare, Inc., No. -CA-MR, WL , at * Ky. Ct. App. Sept. , . Vonderhaar v. AT&T Mobility Servs., LLC et al. F. d , n. , th Cir. . Therefore, Count V is dismissed. Count V)) sets forth a claim for punitive damages. Again, a claim for punitive damages is not a separate cause of action, but a remedy potentially available for another cause of action. PNC Bank, N.A. v. Merenbloom, Nos. Cir. June , Heat, & Power Co., , - , WL , at * th citation omitted applying Kentucky law ; see also Horton v. Union Light, S.W. d v. Abbott, - S.W. d , Ky. Ct. App. Ky. . )n opposition, Vonderhaar cites to Chelsey . But Chelsey is easily distinguishable because that case involved a specific Kentucky statute that treat[ed] punitive damages as a claim. Id. at – . Accordingly, Count V)) is dismissed. Finally, causation is merely an element of a common law negligence claim. Osborne, S.W. d at . For the foregoing reasons, the Complaint in its entirety will be dismissed with prejudice. IV. CONCLUSION (aving reviewed this matter, and the Court being advised, IT IS ORDERED that: Defendants motion for summary judgment GRANTED; and Doc. be, and is hereby, Plaintiff s claims be, and are hereby, DISMISSED WITH PREJUDICE. A separate judgment shall enter concurrently herewith. Vonderhaar v. AT&T Mobility Servs., LLC et al. This th day of March . Vonderhaar v. AT&T Mobility Servs., LLC et al.
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