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Doreen Deaguila, et al v. Bright House Networks

December 21, 2011



THIS CAUSE comes before the Court upon Defendants' Motion for Summary Judgment (Dkt. 73), Plaintiffs' Response in opposition (Dkt. 85), and Defendants' Reply (Dkt. 91). The Court, having considered the motion, response, reply, record evidence, and being otherwise advised in the premises, concludes that Defendants' motion should be granted in its entirety and summary judgment awarded in their favor.


Plaintiff Doreen DeAguila alleges violations of the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the Florida Civil Rights Act ("FCRA"), against Defendants Bright House Networks, LLC and Advance Newhouse Partnership. The remaining Plaintiffs opted-in to Count I of DeAguila's third amended complaint and thus have only ADEA claims.

Defendants move for summary judgment on the entirety of Plaintiffs' claims.


Defendants are in the business of providing cable television, telephone, and hi-speed internet services in West Central Florida.*fn1 Plaintiffs worked (and Plaintiff Ella Williams still works) in the Pinellas sales call center as inbound sales representatives. The call center was generally staffed by approximately thirty-five agents, four leads, and various supervisory personnel. Alicia Patterson was and is the Senior Sales Manager for the inbound sales group for the Pinellas region. Patterson was responsible for the overall operations and oversight of that group. Arthur Lee was one of the supervisors of that group.

Plaintiffs' positions required them to sell the cable company's services to callers, including answering questions, and handling orders for new services. Pinellas sales agents are compensated with a base hourly rate of pay, commissions on sales, and paid time off ("PTO").

Pinellas call center supervisors communicated with their employees in person and via instant messaging. Pinellas sales agents received incoming calls through an automated telephone system. The availability of agents to take calls was critical to the efficient operation of the call center and to customer satisfaction. Defendants required that all sales agents sign into the computer system when they began work, sign out at the end of the shift and, when an agent was not available to take calls during the day for some reason, to notify the system. Defendants also monitored the agents adherence*fn2 (also known as compliance), to ensure that the agent was available to take customer calls.

The record reflects that an agent was not limited by the number of unscheduled restroom, smoke, or other personal breaks he or she took, however, unscheduled breaks affected the agent's adherence number, which also affected the agent's compensation.

According to Plaintiffs, the adherence criteria steadily increased as follows: from November 2005 to October 2006, Plaintiffs had to perform at a level of 90% to obtain a "meets standard" schedule adherence score; from November 2006 to October 2008, Plaintiffs had to perform at a level between 95%-96% to obtain a "meets standard" score; and, at some point after October 2008, Plaintiffs had to perform at 97% to obtain a "meets standard" score. According to Plaintiffs, the increase in the adherence performance criteria severely impacted their ability to take bathroom breaks, because taking an unscheduled break to use the restroom would lower their adherence score.

According to Defendants, the cable industry has dramatically changed in the past seven years and these changes affected the operation of the call center in which Plaintiffs worked. In an effort to respond to the industry changes and be more competitive, especially against new competitors like Verizon, Defendants made numerous changes to the sales agents' compensation plan. Defendants also made changes to the sales agents' working conditions, including changes to the shift-bidding process, and changes to the adherence policy.

For example, in late 2006 or early 2007, Defendants began exploring changes to its compensation plan for sales agents in order to encourage them to sell certain services, to reward top performers, to bring personnel costs into line with agents' production, and to standardize pay practices across the division. In developing the new plan, Defendants studied the existing compensation plan, the pay practices of other companies in the industry, and market surveys. Defendants decided to make three primary changes to the inbound sales agents' compensation. Although the parties do not dispute the details of these changes, which are described in their papers, they do dispute whether the changes discriminated against older employees. According to Defendants, an agent's age did not affect his/her base hourly rate, PTO tier, or commission tier.

The September 2007 compensation plan caused some Pinellas agents' total compensation to increase and some to decrease. The record reflects that, statistically, the changes to the compensation plan had no significant impact on the earnings of the agents over forty, but the earnings of agents under forty decreased in a statistically significant manner.

In early 2008, the Pinellas sales group implemented a performance-based system of shift assignments. In prior years, Pinellas sales agents only changed shifts if an opening occurred because of an agent's departure, but Patterson thought that performance-based shift bidding would encourage agents to perform better. Under the performance-based shift bidding system, agents who received higher rankings would pick from the available shifts before the lower-ranked agents.

The performance-based shift bidding system has continued for all sales agents since Spring 2009. Agents are ranked for shift bidding based on 20% seniority and 80% performance metrics. According to Defendant, the rankings were strictly numerical, i.e., age was never a factor in the bidding system, and eight of the top ten ranked agents in the Spring 2009 shift bid were over forty years of age.

Plaintiff DeAguila performed generally satisfactorily as a Pinellas sales agent. She requested and received "work at home" status in 2004 (when she was forty-one years of age) and, therefore, worked at Defendants' office ...

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