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Timing and Comparators Revive Employee’s Discrimination Claim

Terry Cowgill worked as a call center representative for First Data Technologies, Inc. (First Data), answering customer calls about transaction disputes. The company advised and expected its representatives to try and engage callers. During Cowgill's first nine years of employment, Cowgill had a "spotless disciplinary record" and received "above average performance reviews." After a car accident left her with back injuries, Cowgill requested intermittent Family and Medical Leave Act (FMLA) leave. First Data approved her request. Eight months later, Cowgill recertified her request for intermittent FMLA leave, and the company approved it again. Cowgill testified in her deposition that she had to let her supervisor know each time she needed to leave for appointments or when she could no longer work. Cowgill's supervisor gave her a "Final Written Warning" for unscheduled absences. Cowgill went to Human Resources to complain that Rowe was harassing her and threatening her job. Cowgill also said her absences were part of FMLA leave. The company withdrew the final warning. Right before Cowgill requested recertification, the supervisor met with Cowgill and asked about it. After Cowgill affirmed it, the supervisor accused Cowgill of mishandling a call from the prior month. The supervisor placed Cowgill on a 90-day performance plan. Cowgill alleged the company's policy was to review the call within two days. One month later, after a customer complained about Cowgill abruptly ending a call, First Data terminated Cowgill.

The Fourth Circuit Court of Appeals reviewed Cowgill's claims against First Data. It upheld the lower court's dismissal of her Americans with Disability Act failure to accommodate claim. However, the appellate court revived her disability discrimination claim. Cowgill needed to show that she was disabled, the company fired her, she fulfilled the company's legitimate expectations, and the circumstances of her firing raised the inference of discrimination. Cowgill was highly rated throughout her employment, and the human resources representative told Cowgill she was "such a good rep." The court pointed to the questionable timing of First Data's actions. First Data placed Cowgill on the first performance plan three weeks after her initial accommodation request. Then, First Data placed on her another performance plan right after she confirmed her request for recertification of her leave. When other First Data call representatives did not perform according to expectations, they received coaching and had additional performance issues that led to their termination. Cowgill did not receive any coaching and had no other performance issues. Thus, the appellate court concluded a reasonable jury could find First Data discriminated against her.