United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
Benson United States District Judge
the Court is Defendant, Wells Fargo Bank's ("Wells
Fargo"), motion for summary judgment. [Dkt. 20]. A
hearing was held on May 8, 2017 at which Plaintiff, Ms. Nancy
Ness-Holyoak ("Ms. Ness-Holyoak") was present and
represented by Mr. David J. Holdsworth. Wells Fargo was
represented by Mr. Rick Roskelley. Based on the parties'
written and oral arguments and the relevant facts and the
law, the Court hereby enters the following Order.
worked for Wells Fargo as a customer service representative
in its Salt Lake City call center from 2008 to 2014. Her job
duties included answering telephone calls from customers and
resolving their questions and complaints.
her six years of employment, Wells Fargo accommodated
numerous requests by Ms. Ness-Holyoak for leave and for a
reduced work schedule. Ms. Ness-Holyoak followed the
appropriate procedures as outlined in the employee handbook
when making these requests. In July, 2012, she took a leave
of absence and periodic intermittent leave throughout the
Spring of 2014 to undergo breast cancer surgery, treatment
and care. In the Fall of 2013, Wells Fargo approved a leave
of absence and intermittent leave Ms. Ness-Holyoak requested
as a result of her diagnosis with an acute stress reaction
and depression. Later, she requested that she be allowed to
work a reduced schedule of six hours per day as an
accommodation for her disability, which was granted.
times throughout her employment, Ms. Ness-Holyoak commented
to her supervisors that she believed she received more
difficult ("escalated") calls and a greater number
of calls than her coworkers. According to her supervisors,
the concern she expressed was never tied to her disability.
Her supervisors repeatedly assured her that all calls are
distributed randomly. They explained that there was no way to
decrease the number of escalated calls that any one team
member answered because it was impossible to know which
customer was upset or angry prior to the call being answered
by the customer service representative to whom the call was
randomly assigned. She was reminded, however, that if a
caller was upset or inappropriate, she could always forward
that call to her supervisor. In an effort to work with her,
one of her supervisors asked her to keep a record of calls
she believed were escalated so they could review them
together, but Ms. Ness-Holyoak never did so. Her employment
was ultimately terminated in November, 2014 after she failed
to report to work for three months without approval.
Ness-Holyoak's suit against Wells Fargo alleges that the
bank violated the Americans with Disabilities Act
("ADA") by failing to accommodate her stress and
depression disability. The accommodation she wanted was for
her supervisors to ensure that her coworkers answered their
fair share of escalated calls. If they did, Ms. Ness-Holyoak
asserts, her number of escalated calls would have
Fargo moves for summary judgment on the grounds that: (1) Ms.
Ness-Holyoak did not sufficiently request an accommodation
for her disability pertaining to the distribution of
escalated calls; and (2) even if she had, the request was
TO ACCOMMODATE CLAIM
establish a prima facie case of failure to
accommodate in accordance with the ADA, a plaintiff must show
that: (1) she is a qualified individual with a disability;
(2) the employer was aware of her disability; and (3) the
employer failed to reasonably accommodate the disability.
Allen v. SouthCrest Hosp., 455 F.App'x 827, 834
(10th Cir. 2011). See also, Anderson v. Coors
Brewing Co., 181 F.3d 1171, 1175 (10th Cir.
1999). The plaintiff also has the burden of showing that she
"sufficiently requested the accommodation in
question." Freadman v. Metro. Prop. & Cas. Ins.
Co., 484 F.3d 91, 102-03 (1st Cir.
2OO7)(citations omitted). The request must be sufficiently
direct and specific, and explain how the accommodation
requested is linked to a disability. Id. at 102-03.
Plaintiff must show that the proposed accommodation is
reasonable -that it will '"enable her to perform the
essential function of her job' and that 'at least on
the face of things, it is feasible for the employer under the
circumstances.'" Id. (quotations and
citations omitted). "It is axiomatic, however, that an
employer is not required to relieve an employee of an
essential job function." EEOCv. Picutre People,
Inc., 684 F.3d 981, 987 (10th Cir. 2012).
Request For Accommodation
Fargo's employee handbook prescribes the procedure an
employee must follow to request an accommodation due to a
disability. The procedure requires an employee to discuss her
needs and make her request to her supervisor and the Wells
Fargo Accommodations Management Department.
she admits that she knew of the required procedure, and that
she had previously followed the procedure to obtain a reduced
work schedule as an accommodation for her disability, it is
undisputed that Ms. Ness-Holyoak never made a request to the
Accommodations Management Department regarding the
distribution of escalated calls. While she did complain to
her supervisors, both before and after her diagnosis, about
the number of escalated calls she received, she did not
relate her complaints to her disability or state in any way
that she was seeking an accommodation for a disability. It
was Ms. Ness-Holyoak's responsibility to follow the
procedure for requesting an accommodation under the ADA.