United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
CAROLYN S. OSTBY, Magistrate Judge.
Plaintiff Brett Qualters ("Qualters") filed this wrongful discharge action against Defendant Bresnan ("Bresnan"),  claiming that Bresnan discharged him from his employment as a telephone customer support representative without good cause and in violation of its own written personnel policy. Second Am. Cmplt. (ECF 6) at ¶¶ 11, 12.
Pending is Bresnan's summary judgment motion. Bresnan's Summary Judgment Mtn. (ECF 26). As discussed further below, Bresnan argues that it had good cause to discharge Qualters for misconduct and various performance deficiencies. Bresnan's Opening Br. (ECF 28) at 2. Bresnan argues that it did not violate its policies and procedures in firing Qualters. Id. at 12-14.
Qualters responds that summary judgment is not appropriate. He maintains that genuine issues of material fact exist respecting each performance deficiency identified by Bresnan. Qualters' Resp. Br. (ECF 35) at 2, 6-12. Qualters acknowledges that he received a written warning respecting certain alleged performance deficiencies, but he disputes Bresnan's characterization of his alleged performance deficiencies. He also contends that he had recently had medical issues that required him to seek certain accommodations from Bresnan and his discharge occurred the day before he would have become eligible for the Family Medical Leave Act, suggesting that Bresnan's proffered reason for discharging him was pretextual. Id. at 6-13.
Having considered the parties' submissions and the applicable law, the Court enters the following Findings and Recommendation concluding that genuine issues of material fact exist and recommending that Bresnan's summary judgment motion be denied.
Qualters worked for Bresnan from February 18, 2011, until February 17, 2012. ECF 34 at ¶ 1. He worked as a technical support representative who was to provide professional support for Bresnan customers within customer service standards. Id. at ¶ 2. His duties included complying with call center operational objectives, phone system procedures, and work schedules. Id. He also was to work within department/call center/company standards, rules, procedures, policies, and regulations. Id.
In November 2011, Qualters received a "final written warning" discussing various violations of Bresnan policies revealed during an audit of Qualters' calls. Id. at ¶ 3. The written warning states: List work rules, company policies/procedures etc. violated: Bresnan Communications Employee Handbook, Expectations, Pg. 9:
That you will perform your work in a careful, efficient manner
That you will apply yourself to the best of your ability to your assignments
Bresnan Communications Employee Handbook, Pg 19:
Misbehavior including but not limited to: Wasting time
Factual and specific description of the performance or behavioral problem(s):
Brett, a review of your call handling for the month of October revealed that on a daily basis multiple customer calls were routed to your phone extension, and were then agent disconnected within a few seconds of you receiving the calls. Below is a detailed evaluation of 1 day (October 21[, 2011]), but is representative of all days looked at for the month of October:
This represents 13 calls on this day that were delivered to your phone by the system, and were disconnected at your local phone within the first 10 seconds of the call.
It was also discovered that throughout the day you will make outside line calls to your own personal cell phone and then after the call is connected you will transfer the call to the customer survey.
Throughout the month of October you have been recorded calling your work voicemail box and then hanging up the call immediately after connecting to the ...