Stover v. Ocala Automotive Management, LLC

Filing 30

ORDER granting in part and denying in part 17 Motion for summary judgment. The Motion is granted as to the Count I FMLA claims and denied as to the Count II unpaid wages claim. Signed by Judge James S. Moody, Jr on 9/9/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

KELLY STOVER,
Plaintiff,
v.

Case No: 5:15-cv-538-Oc-30PRL

OCALA AUTOMOTIVE
MANAGEMENT, LLC,
Defendant.

ORDER
THIS CAUSE comes before the Court upon the Defendant's Motion for Summary
Final Judgment (Doc. 17), Plaintiff's response in opposition (Doc. 22), and Defendant’s
reply (Doc. 25). The Court, having considered the motion, response, reply, and record
evidence, and being otherwise fully advised in the premises, concludes that Defendant’s
motion should be granted in part.
RELEVANT FACTS
This case involves an employment dispute between Plaintiff, Kelly Stover, and
Defendant, Ocala Automotive Management, LLC d/b/a Honda of Ocala. Plaintiff was
employed by Defendant as a vehicle exchange specialist (“VES”) in 2013, and continued
to work in the VES department until August 2015. By all accounts, Plaintiff was a model
employee who worked hard and was successful at her job. Plaintiff was promoted several

times and offered a salaried position paying $40,000 per year, plus bonuses based on her
individual performance, and provided a demonstrator vehicle by Defendant.
In May and June 2015, Plaintiff requested time off for an illness under the Family
Medical Leave Act (“FMLA”). Defendant approved Plaintiff’s requested leave, and
Plaintiff remained on leave until she was released back to work by her physicians.
While Plaintiff was on leave, Andrew Vislosky was named Defendant’s new general
manager. Mr. Vislosky undertook several cost-cutting measures that affected the VES
department as well as others. As part of those measures, Mr. Vislosky reduced the pay for
Plaintiff’s position from $40,000 per year to $12.50 per hour, the same as the other VES
employee. Mr. Vislosky also restructured the bonus incentive such that it was based on the
performance of the VES department as a whole instead of individual performance. Finally,
Mr. Vislosky terminated the VES department’s administrative assistant.
Similar cost-cutting measures were also taken outside the VES department.
Specifically, Mr. Vislosky terminated a manager making $250,000, and reduced the pay of
a director from $200,000 to $80,000.
Plaintiff returned to work on August 3, 2015, and was informed of Mr. Vislosky’s
cost-cutting measures in the VES department. Plaintiff, rather than accepting the pay
decrease and bonus restructuring, took the matter to Defendant’s CEO. Following a
discussion with the CEO, Plaintiff decided to end her employment with Defendant rather
than accept the new terms. This lawsuit followed.
As part of this lawsuit, Plaintiff claims Defendant failed to pay her two $1,000
bonuses she earned in January and March 2015. Plaintiff testified that she submitted the

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required documentation to receive the bonuses to Defendant, but that Defendant never
provided the payment. In the summary judgment record, Defendant never addresses
whether Plaintiff was entitled to those bonuses or whether such bonuses were paid.
SUMMARY JUDGMENT STANDARD
Motions for summary judgment should be granted only when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any show there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(internal quotation marks omitted); Fed. R. Civ. P. 56(c). The existence of some factual
disputes between the litigants will not defeat an otherwise properly supported summary
judgment motion; “the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law applicable
to the claimed causes of action will identify which facts are material. Id. Throughout this
analysis, the court must examine the evidence in the light most favorable to the nonmovant
and draw all justifiable inferences in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits, depositions,
answers to interrogatories and admissions on file, and designate specific facts showing that
there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be
significantly probative to support the claims. Anderson, 477 U.S. at 248–49.

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This Court may not decide a genuine factual dispute at the summary judgment stage.
Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual
issues are present, the Court must deny the motion and proceed to trial.” Warrior
Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute
about a material fact is genuine and summary judgment is inappropriate if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477
U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.1990). However, there
must exist a conflict in substantial evidence to pose a jury question. Verbraeken v.
Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
DISCUSSION
Plaintiff claims Defendant violated the FMLA in Count I, and claims Defendant
failed to pay Plaintiff two bonuses in Count II. For the reasons below, Defendant is entitled
to summary judgment as to the FMLA claims in Count I, but is not entitled to summary
judgment as to the unpaid wages claim in Count II.
1. Plaintiff’s FMLA Claims
Plaintiff alleges Defendant violated the FMLA when it failed to reinstate her to her
prior position upon her return from FMLA leave. 1 The FMLA requires an employer

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In an affidavit attached to Plaintiff’s response, Plaintiff for the first time alludes to a claim that Defendant
interfered with her right to take leave when Defendant’s human resources department told her it doubted
Plaintiff’s FMLA request would be approved. This claim was not raised in the Complaint (Doc. 2) and is
not properly before the Court. Miccosukee Tribe of Indians of Florida v. United States, 716 F.3d 535, 559
(11th Cir. 2013) (“In this circuit, a plaintiff cannot amend his complaint through argument made in his brief
in opposition to the defendant's motion for summary judgment.”); see also Boone v. City of McDonough,
571 Fed. Appx. 746, 751 (11th Cir. 2014). Regardless, Plaintiff’s affidavit is directly contradicted by
Plaintiff’s deposition testimony, in which she stated Defendant’s former general manager, Steve Hoggle,
told her to take the leave, and that Defendant did not preclude or prevent her from taking the leave. Plaintiff

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reinstate an employee who is returning from leave to the position she held when her leave
began, or to another position that is equivalent in terms of benefits, pay, and other relevant
conditions of employment. 29 U.S.C. § 2614(a)(1) (2012); Schaaf v. Smithkline Beecham
Corp., 602 F.3d 1236, 1241 (11th Cir. 2010). It is unlawful for “any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise” an employee’s right to
reinstatement after leave. § 2615(a). The Eleventh Circuit has recognized that § 2615(a)
creates two types of claims: “interference claims, in which an employee asserts that his
employer denied or otherwise interfered with his substantive rights under the [FMLA], and
retaliation claims, in which an employee asserts that his employer discriminated against
him because he engaged in activity protected by the [FMLA].” Hurlbert v. St. Mary's
Health Care System, Inc., 439 F.3d 1286, 1293 (11th Cir.2006) (internal citations omitted).
Plaintiff’s Complaint raises both a claim for interference and retaliation.
a. Plaintiff’s claim for interference
To establish an FMLA interference claim, “an employee need only demonstrate by
a preponderance of the evidence that he was entitled to the benefit denied.” Krutzig v. Pulte
Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010) (quoting Strickland v. Water Works
and Sewer Bd. of Birmingham, 239 F.3d 1199, 1206–07 (11th Cir.2001)). The intent of the
employer is irrelevant. Id.

is not permitted to create an issue of genuine material fact by providing an affidavit that contradicts, rather
than clarifies, her prior testimony. Van T. Junkins & Associates, Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657
(11th Cir. 1984).

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An employee’s rights, however, are not absolute. An employee who takes leave is
not entitled to “any right, benefit, or position of employment other than any right, benefit,
or position to which the employee would have been entitled had the employee not taken
the leave.” § 2614(a)(3)(B). In other words, an “employee has no greater right to
reinstatement or to other benefits and conditions of employment than if the employee had
been continuously employed with the company during the FMLA leave period.” Parris v.
Miami Herald Pub. Co., 216 F.3d 1298, 1301 (11th Cir. 2000). As such, “an employer is
not liable for failing to reinstate an employee after she has taken FMLA leave if it can show
that it refused to reinstate her for a reason unrelated to FMLA leave.” Thomas v.
Dolgencorp, LLC, 645 Fed. Appx. 948, 952 (11th Cir. 2016) (citing Krutzig, 602 F.3d at
1236).
It is beyond dispute that Plaintiff was not reinstated to her prior position upon return
from leave. Plaintiff’s $40,000 salary was reduced to $12.50/hour. Defendant also
concedes that Plaintiff suffered an adverse employment action upon her return. Plaintiff,
therefore, has stated a prima facie case for interference, and the burden shifts to Defendant
to show the reason for Plaintiff not being reinstated was unrelated to her FMLA leave.
Defendant met its burden by providing ample evidence for this Court to conclude
that its reason for failing to reinstate Plaintiff was unrelated to her FMLA leave.
Defendant’s general manager, who took over while Plaintiff was on leave, restructured the
VES program to cut costs in a way that affected all the employees in the department,
including those who did not take FMLA leave. These measures included terminating an
administrative assistance and restructuring the department’s bonuses. Moreover,

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Defendant implemented cost-cutting measures in other departments. Plaintiff presented no
evidence that these cost-cutting measures were related to her FMLA leave. Accordingly,
Defendant is entitled to summary judgment.
b. Plaintiff’s claim for retaliation
To establish a prima facie case for retaliation, an employee needs to show the
following: (1) the employee engaged in statutorily protected conduct, (2) the employee
suffered an adverse employment action, and (3) there is a causal connection between the
two. Krutzig, 602 F.3d 1231, 1234 (11th Cir. 2010). To prove a causal connection, “a
plaintiff need only show that the protected activity and the adverse action were not wholly
unrelated.” Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir.
2000) (internal citations omitted). Defendant does not dispute that Plaintiff engaged in
statutorily protected conduct, i.e. the taking of FMLA leave, or that Plaintiff suffered an
adverse employment action. Rather, Defendant contends it is entitled to summary judgment
because there is no causal connection between the statutorily protected conduct and adverse
employment action.
When a plaintiff offers no direct evidence of a causal connection, this Circuit
employs the burden-shifting framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Brungart, 231 F.3d at 798. Under the
McDonnell Douglas framework, proximity in time between the protected conduct and
adverse employment action is generally sufficient circumstantial evidence to create a
genuine issue of material fact of a causal connection when the decision maker is aware of
the protected conduct. Id. at 799; Thomas, 645 Fed. App’x at 953. Once the plaintiff makes

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out a prima facie case, the burden shifts to the defendant to provide a legitimate reasons
for the adverse employment action. Hurlbert, 439 F.3d at 1297. If the defendant provides
a legitimate reason, “the plaintiff must then show that the defendant's proffered reason for
the adverse action is pretextual.” Id.
Plaintiff has made a prima facie case. Although there is no direct evidence
establishing a causal connection between her FMLA leave and adverse employment action,
the temporal proximity between the two is sufficient circumstantial evidence to create a
genuine issue of material fact. On Plaintiff’s first day back from FMLA leave, Defendant
reduced her salary and changed her bonus structure. Thus, Plaintiff has sufficiently made
out a claim for retaliation.
The burden then shifts to Defendant to provide a legitimate reason for the adverse
action that is unrelated to Plaintiff’s FMLA leave. A legitimate reason for the adverse
action can be “a good reason, a bad reason, a reason based on erroneous facts, or ... no
reason at all, as long as its action is not for a discriminatory reason.” Brisk v. Shoreline
Found., Inc., 15–13028, 2016 WL 299172 *2 (11th Cir. 2016) (quoting Nix v. WLCY
Radio/Rahall Comms., 738 F.2d 1181, 1187 (11th Cir. 1984)). As explained in regard to
Plaintiff’s interference claim, Defendant has provided such a reason. Namely, Defendant
undertook cost-cutting measures at the direction of its new general manager, including the
terminating of the VEP program’s administrative assistant and restructuring of the
department’s bonuses. And, as already noted, these cost-cutting measures also affected
departments other than the one in which Plaintiff worked.

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Having provided a legitimate reason for the adverse employment action, the burden
shifts back to Plaintiff to show Defendant’s reason is mere pretext. Pretext is only proven
if it is shown both that the reason was false, and that discrimination or retaliation was the
real reason behind the challenged action. Id. (citing St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993)). Here, Plaintiff has failed to satisfy her burden.
Plaintiff makes only one argument suggesting Defendant’s cost-cutting measures
were pretextual, namely that Plaintiff was a model employee who had repeatedly received
raises and promotions prior to her FMLA leave. 2 This argument neither shows that
Defendant’s cost-cutting measures were false, nor that retaliation was the motive for the
cost-cutting measures.
To the contrary, no reasonable factfinder could conclude that Defendant’s costcutting measures bore any relation to Plaintiff’s FMLA leave. Defendant terminated
another employee in Plaintiff’s department as part of its efforts to cut costs. Defendant also
reduced pay for and terminated employees outside of Plaintiff’s department. These broad

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The Court notes,
The Court does not have an obligation to parse a summary judgment
record to search out facts or evidence not brought to its attention. Atlanta Gas Light
Co. v. UGI Utilities, Inc., 463 F.3d 1201, 1209 n. 11 (11th Cir. 2006). “It is the
obligation of the non-moving party ... not the Court, to scour the record in search
of the evidence that would defeat a motion for summary judgment: Rule 56
‘requires the nonmoving party to go beyond the pleadings and by its own
affidavits, or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial.’ ” Lawrence
v. Wal–Mart Stores, Inc., 236 F.Supp.2d 1314, 1322 (M.D.Fla.2002) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986)).

McNorton v. Georgia Dep't of Transp., 619 F. Supp. 2d 1360, 1365 (N.D. Ga. 2007).

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cost-cutting measures, in which other employees who did not take FMLA leave were met
with even greater adverse employment actions than Plaintiff, leave no room for the doubt
that Plaintiff was not targeted for discrimination or retaliation because of her FMLA leave.
Because Plaintiff failed to show Defendant’s legitimate reason for the adverse
employment action was pretext, Defendant is entitled to summary judgment on Plaintiff’s
retaliation claim.
2. Plaintiff’s Unpaid Wages Claim
Having decided that Defendant is entitled to summary judgment on Plaintiff’s
FMLA claims, over which the Court has original jurisdiction, Defendant argues the Court
is divested of jurisdiction for Plaintiff’s unpaid wages claims, over which the Court only
has supplemental jurisdiction. Defendant also argues Plaintiff presented no evidence, other
than her assertions, to support her claim for unpaid wages. Plaintiff does not address the
issue of jurisdiction, but instead only argues that “Defendant has not provided any record
evidence rebutting the Plaintiff’s potential entitlement to such sums.” (Doc. 22 at 12).
Defendant misstates the law regarding this Court’s ability to exercise continued
jurisdiction over Plaintiff’s unpaid wages claim.
Under 28 U.S.C. § 1367(c), a district court has the discretion to decline to
exercise supplemental jurisdiction over pending state law claims if the
district court has dismissed all federal claims prior to trial. The district court
may consider judicial economy, convenience, fairness, and comity in
deciding whether or not it should exercise supplemental jurisdiction.
Bus. Realty Inv. Co. v. Insituform Techs., Inc., 564 F. App'x 954, 957 (11th Cir. 2014)
(citing Baggett v. First Nat'l Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir.1997));
see also Jones v. Spherion Atl. Enter., LLC, 493 F. App'x 6, 11 (11th Cir. 2012).

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Here, the Court concludes it should exercise its supplemental jurisdiction over
Plaintiff’s unpaid wages claim. Plaintiff’s unpaid wages claim does not present novel issues
of Florida law. Dismissing Plaintiff’s unpaid wages claim at this late stage—with discovery
completed and trial scheduled to occur in approximately 60 days—would unwind a costly
process that is nearly complete, forcing both parties to incur unnecessary expense and
delaying resolution of an issue that is ripe for determination. As such, in the interest of
fairness and convenience, the Court concludes it should retain jurisdiction over the
Plaintiff’s unpaid wages claim rather than dismissing it.
Having decided to exercise jurisdiction, the Court concludes Defendant is not
entitled to summary judgment because a genuine issue of material fact exists. It appears
Defendant is arguing it is entitled to summary judgment because Plaintiff cannot meet its
burden of proof at trial. See Celotex, 477 U.S. at 322–23. The Court cannot say that there
is no genuine issue of material fact related to Plaintiff’s unpaid wages claim based on the
scant evidence presented by the parties, and, therefore, Defendant is not entitled to
summary judgment.
CONCLUSION
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1.

The Motion for summary judgment (Doc. 17) is GRANTED, in part, and
DENIED, in part;

2.

The Motion is granted as to the Count I FMLA claims; and

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3.

The Motion is denied as to the Count II unpaid wages claim.

DONE and ORDERED in Tampa, Florida, this 9th day of September, 2016.

Copies furnished to:
Counsel/Parties of Record

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