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Stewart v. Qwest Corp.

United States District Court, D. Minnesota

December 20, 2018

Kimberly Stewart, Plaintiff,
v.
Qwest Corporation, d/b/a CenturyLink QC, Defendant.

          Anja M. Sivertson, Esq., Alf E. Sivertson, Esq. counsel for plaintiffs.

          Sarah E. Crippen, Esq., Ashleigh M. Leitch, Esq. counsel for defendant.

          ORDER

          David S. Doty, Judge

         This matter is before the court upon the motion for summary judgment by defendant Qwest Corporation, d/b/a CenturyLink QC. Based on a review of the file, record, and proceedings herein, the court grants the motion.

         BACKGROUND

         This employment action arises out of plaintiff Kimberly Stewart's resignation from Qwest on August 23, 2017. Stewart began working at Qwest in 2015 as a credit consultant. Sivertson Aff. Ex. 1. Kevin Barrett supervised Stewart at all times relevant to this action. Barrett Dep. at 8:14-9:3. Stewart's daily schedules, breaks, absences, and leave requests were managed by Patricia Farris in Qwest's resource allocation specialist department (RAS). Farris Dep. at 6:19-7:8-8:12, 10:19-13:20. Farris was supervised by Shelley Reinhardt, manager of RAS. Id. at 17:19-24.

         I. Workers' Compensation Claim

         Stewart had a latent neck injury when she started work at Qwest. Stewart Dep. at 32:9-33:6. At some point during her tenure, Stewart's injury flared up and she began missing work due to pain and doctors' appointments. Stewart exhausted all of her Family Medical Leave Act time on October 3, 2016, and filed a claim for short term disability benefits with Qwest's benefits administrator, Sedgwick. Leitch Decl. Ex. K.

         Stewart then filed a workers' compensation claim with Sedgwick on January 26, 2017. Stewart Dep. at 40:1-4, 140:22-143:5. She also asked Barrett for a new chair to help alleviate her pain. Id. at 142:9-17. Sedgwick referred Stewart to the claims department, which told her that she needed to work directly with Barrett to file a workers' compensation claim. Id. at 143:10-144:25. Barrett then told her that she needed a note from her doctor in order to start the claims process and to get a new chair. Id. at 145:3-9. Stewart gave Barrett a note from her doctor at the end of January or early February and Barrett agreed to order her a new chair, which Stewart received in May.[1] Id. at 145:14-25, 146:18-19. Stewart's workers' compensation claim was denied, however. Id. at 146:5-17.

         Stewart also requested stretch breaks to help ease the pain. Id. at 146:23-147:3. After initially denying the request, Qwest agreed to allow Stewart to take breaks throughout the day without pay. Id. at 147:9-11. Stewart continued to accrue many absences throughout the spring of 2017 due to her neck pain, despite having no additional FMLA time left. See Leitch Decl. Exs. E, F, J, L, & N. She also failed to work mandatory overtime in March. Id. Ex. I. In April 2017, Stewart met with Barrett, human resources, and her union representative to discuss her repeated absences from work. See id. Exs. E and F. Qwest informed Stewart that additional absences could result in termination. Id. Ex. E at 3-4; Barrett Dep. at 19:23-21:5.

         II. Whistle Blower Activity

         Stewart alleges that in February 2017 she first reported concerns about Qwest's billing and collection practices to Barrett. Stewart Dep. at 167:14-168:25. She specifically noted her concern that Qwest was fraudulently billing for equipment customers had already returned or never ordered.[2] Id. at 165:20-166:6, 181:5-25, 190:3-14. Barrett told her to transfer those kinds of calls to the billing department because the collections department did not address “mischarged items on a bill.” Id. at 169:6-13; Barrett Dep. at 48:4-17. Stewart felt that as a manager Barrett should have handled the calls himself and that his failure to do so allowed the fraudulent activity to continue. Id. at 169:6-13. Barrett recalls Stewart having questions about certain billing issues, but does not recall that she was concerned that Qwest was engaged in fraud. Barrett Dep. at 45:19-46:10.

         Despite her belief that Qwest was defrauding customers, Stewart did not file an internal complaint with Qwest. Qwest employees may make anonymous reports of alleged wrongdoing online or via telephone through its compliance hotline, Integrity Line. Id. at 52:12-21. Stewart claims that she wanted to complain about the fraudulent billing, but was blocked from Integrity Line's website and did not have time to call its twenty-four hour toll-free number.[3] Stewart Dep. at 175:21-176:17, 177:4-178:2. Stewart also believed that reporting the fraud would be futile, but she does not fully explain why. Id. at 178:3-10. She did not report the alleged fraud to anyone else at Qwest. Id. at 179:8-11. Stewart's “whistle blowing” was limited to her instant messages and direct conversations with Barrett in February and June 2017. Id. at 193:14-194:8.

         III. Retaliation

         Stewart alleges that she was subject to retaliation by Qwest from January 2017 until she quit on August 23, 2017, because she filed a workers' compensation claim and engaged in whistle blowing as set forth above. The instances of retaliation include:

• Barrett twice hit her desk in April 2017 and joked that she was being fired after formal discussions about her repeated absences, Stewart Dep. at 203:7-204:13;
• Farris, Reinhardt, and employees in the human resources department repeatedly asked her if she was having surgery for her neck, id. at 205:10-13;
• Barrett's supervisor Nick Boyer told her that she was crazy on two or three occasions, id. at 205:17-25, 206:12-17, 209:2-3;
• Farris and Reinholdt “sneered” at her and made fun of her clothing two or three times, id. ...

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