Kissinger-Campbell v. Harrell et al

Filing 42

ORDER denying 31 Motion for Judgment on the Pleadings; denying 7 Motion for summary judgment. Signed by Judge James D. Whittemore on 1/12/2009. (KE)

UNITED S T A T E S D I S T R I C T C O U R T MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

KIRTSEN KISSINGER-CAMPBELL, Plaintiff, vs. C. R A N D A L L H A R R E L L , M.D., P.A., a n d C. R A N D A L L H A R R E L L , M.D., Defendants. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-----:1 ORDER B E F O R E T H E C O U R T are: (1) D e f e n d a n t s ' M o t i o n for S u m m a r y J u d g m e n t (Dkt. 7), to
w h i c h P l a i n t i f f has r e s p o n d e d in o p p o s i t i o n (Dkt. 14); and (2) D e f e n d a n t s ' M o t i o n for Partial J u d g m e n t on the Pleadings (Dkt. 31), to w h i c h P l a i n t i f f has responded in o p p o s i t i o n (Dkt. 41).1 U p o n consideration, D e f e n d a n t s ' motions are DENIED.

CASE NO. 8:08-cv-568- T -27TBM

Background
P l a i n t i f f Kirtsen Kissinger-Campbell was employed by Defendants C. Randall Harrell M.D., P.A. ("Harrell, P . A . " ) and C. Randall Harrell, M.D. ("Harrell") b e t w e e n S e p t e m b e r or O c t o b e r 2005 and April 2, 2007. (Compl., Dkt. 2, 1 1 7 , 9). In M a y 2007, P l a i n t i f f filed a lawsuit for n o n - p a y m e n t o f overtime, p u r s u a n t to the F a i r L a b o r Standards Act ( " F L S A " ) , 29 U.S.C. § 201 et seq. (Dkt. 2 , 1 12). In the instant action, P l a i n t i f f contends that Defendants retaliated against h e r for the filing o f that lawsuit by interfering with h e r attempts to obtain a n e w j o b in the medical field. S h e brings

1 Defendants filed the M o t i o n for Summary Judgment while represented by former counsel. Following substitution o f counsel, Defendants filed the additional Motion for Partial Judgment on the Pleadings.

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claims for retaliation in violation o f the F L S A and the private Florida W h i s t l e b l o w e r ' s Act (Counts I and II), as well as claims for tortious interference (Counts N a n d V).2 Harrell is a licensed cosmetic surgeon who operates the " F o u n t a i n o f Yo u t h Institute" in P a l m Harbor, Florida. (Dkt. 2, <j[ 5). Kissinger was e m p l o y e d at the F o u n t a i n o f Y o u t h as a "Image Consultant/Assistant Office Manager." (Dkt. 2, <j[ 7). On March 2 7 , 2 0 0 7 , P l a i n t i f f resigned from employment with two w e e k s ' notice, due to changes in her bonus c o m p e n s a t i o n structure. (PI. Dep. at 47-48, Exh. 3; Harrell Dep. at 111). P l a i n t i f f ' s final day was April 2, 2007. (Dkt. 2, <j[ 9). On or about May 29, 2007, P l a i n t i f f filed the F L S A action in state c o u r t against Harrell, P .A., w h i c h was removed to this C o u r t on J u n e 18, 2007 ( " t h e lawsuit")." The c o m p l a i n t and summons were served on Harrell, as registered agent, on J u n e 1 , 2 0 0 7 . (Case No. 8 : 0 7 - c v - l 0 6 2 - T - 2 6 M A P , Dkt. 1-3). P l a i n t i f f did not h a v e any discussion with Harrell or her co-workers about not being paid overtime before she resigned. (PI. Dep. at 80). P l a i n t i f f contends that although she sent out resumes to approximately five possible employers, she had a difficult t i m e finding a new j o b . As discussed below, P l a i n t i f f presents e v i d e n c e that Harrell contacted at least one employer, My Choice Medical, and t h a t he may h a v e c o n t a c t e d o t h e r employers.
1. My Choice M e d i c a l

D u r i n g the time she w o r k e d for Defendants, P l a i n t i f f was the p o i n t o f contact between Defendants and My Choice Medical, a cosmetic surgery finance company. (PI. Dep. at 2 1 3 , 8 ) . In

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The Complaint does not include a Count III.

3 The Complaint alleges that the state court lawsuit was filed on May 25, 2007. (Dkt. 2, <]I 12), This appears to be incorrect, as the complaint in that lawsuit was signed on May 2 8 , 2 0 0 7 . (Case No. 8:06-cv-l072-T-26MAP, Dkt. 2).

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April 2007, one or two weeks after she left the Fountain o f Youth, Plaintiff spoke with Donielle DiTota about working for My Choice Medical. (PI. Dep. at 179). According to Plaintiff, DiTota told her that My Choice was looking to hire a person to work in Florida. (PI. Dep. at 118, 123). Plaintiff testified that she "was under the impression that I was going to start with them at the end o f the month in April and that d i d n ' t happen. And, so, I j u s t kept e-mailing and calling to see if they were still looking for somebody because I had been told that they were looking for someone in Florida." (PI. Dep. at 118). On July 23, 2007, Plaintiff sent an email to DiTota asking if My Choice Medical was still looking for a personal image consultant. (Dkt. 2, Exh. A). DiTota replied as follows: Hi, To be honest with you Dr Harrell had called here and spoke with Vincent and myself. In our contract with the Doctors, it states we are not to solicit employees o f the Doctors, as the Doctors are not to do so with our employees. Dr Harrell made it very clear, that employing you would be breach of contract. Although, we do not need anyone in the Florida offices right now, we are unable to use you [sic] services as a [personal image consultant] due to our contract with Dr. Harrell. I do know that from working with you in the past that you would be a great asset to the company. Unfortunately, my hands are tied. If there are any changes in the near future, I will let you know. Thank you Donielle D i T o t a (Dkt. 2, Exh. A) (emphasis in original). Within weeks to a month after receiving this email, Plaintiff told DiTota that she was the one who contacted My Choice Medical. (Pl. Dep. at 123). According to Plaintiff, DiTota then spoke to Vincent Traposso, My Choice Medical's CEO, who approved Plaintiff's hiring for a position in the company. (PI. Dep. at 1 2 3 - 2 4 , 1 2 7 , 119). Plaintiff began working for My Choice at the end o f August 2007. (PI. Dep. at 131). She was not hired for the position in Florida, but was instead hired
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to c o v e r N a s h v i l l e a n d N e w Orleans. (PI. Dep. at 128). Harrell denies h a v i n g a c o n v e r s a t i o n w i t h D i T o t a or a n y o n e e l s e at M y C h o i c e M e d i c a l c o n c e r n i n g Plaintiff. (Harrell D e p . at 153-54). By contrast, S c o t t M c A u l e y , D e f e n d a n t s ' O f f i c e A d m i n i s t r a t o r , t e s t i f i e d d u r i n g his first d e p o s i t i o n t h a t Harrell h a d a c o n v e r s a t i o n w i t h D i T o t a a b o u t n o t h i r i n g Plaintiff. ( M c A u l e y Dep. I at 52). Specifically, M c A u l e y t e s t i f i e d as follows: Do you k n o w a D o n i e l l e D i T o t a at My C h o i c e M e d i c a l ? Yes. O k a y . D i d you e v e r h a v e a c o n v e r s a t i o n w i t h h e r a b o u t not h i r i n g M i s s K i s s i n g e r a f t e r she left here? A: I d i d not. Q: Do you k n o w i f anyone did? A: Yes. Q: W h o w o u l d t h a t be? A. Dr. Harrell Q: Okay. T e l l me w h a t you k n o w a b o u t that. A: It was -- we h a v e a c o n t r a c t or b u s i n e s s w i t h My C h o i c e M e d i c a l in w h i c h t h e y e m p l o y consultants to c o m e to o u r facility. So w h a t was said or w h a t we d i d n ' t w a n t h a p p e n i n g in terms o f the c o n t r a c t was l o s i n g o u r s t a f f to t h e i r company. ( M c A u l e y D e p . I at 52). M c A u l e y testified in a s e c o n d d e p o s i t i o n t h a t he was " m i s t a k e n " a b o u t this c o n v e r s a t i o n and " m i s a n s w e r e d the q u e s t i o n . " ( M c A u l e y Dep. II at 10).4 Q: A: Q:

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Other prospective employers
P l a i n t i f f also testified t h a t she h a d two interviews w i t h Dr. Z b e l l a at M e d i - W e i g h t l o s s , and

was g i v e n a start date. (PI. Dep. 120, 122). A c c o r d i n g to Plaintiff, h o w e v e r , Z b e l l a l a t e r t o l d h e r t h a t he was going to h i r e s o m e o n e else. (PI. Dep. at 122). A l t h o u g h P l a i n t i f f testified t h a t she

4 In his second deposition, McAuley testified that Harrell asked him about this deposition testimony the following week. (McAuley Dep. II at 13) Specifically, Harrell asked McAuley: "Scott, did I -- or did you physically hear me talk to Donielle on the phone discussing Ms. Kissinger and I said absolutely not. And he says, well, you had answered one o f his questions that I did and I said no, that c a n ' t be, and t h a t ' s what was really talked about." (McAuley Dep. II at 14). Another employee testified that at the end o f February, M c A u l e y ' s office manager duties were removed. (Gamaras Dep. at 7-8; McAuley Dep. II at 7).

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believes that Harrell contacted Zbella, Plaintiff does not have any direct evidence to support this contention. (PI. Dep. at 124). Eva Gamaras, a former surgical technician at the Fountain o f Youth, testified that Harrell " t o l d me that Kirtsen had applied for this j o b and this j o b and this job, that he kind of, I d o n ' t know, blackballed her in a sense where she c o u l d n ' t get j o b s at certain places . . . . " (Gamaras Dep. at 130). Although Gamaras testified that Harrell did not specifically tell her that he "blackballed" Plaintiff, he did make it known to Gamaras that he had some part in preventing Plaintiff from getting certain positions. (Gamaras Dep. at 134-35). Gamaras and another former employee, Shawnette Incorvaia, both testified that it is their interest for Harrell not to know where they currently work. (Gamaras Dep. at 94; Incorvaia Dep. at 20-21). In the instant motion for summary judgment, Defendants argue that Plaintiff cannot prove a prima facie case on her claims for retaliation under the FLSA or pursuant to the Florida W h i s t l e b l o w e r ' s Act because there is no evidence that Harrell was aware o f Plaintiff's protected activity -- the May 29, 2007 lawsuit -- when he allegedly contacted My Choice Medical, or in fact, that he contacted My Choice after the lawsuit was filed. Defendants also move for summary j u d g m e n t on P l a i n t i f f s claims for tortious interference, arguing that Plaintiff has not shown a sufficiently definite prospective business relationship with My Choice Medical. As set forth below, the Court finds that Plaintiff has presented adequate evidence to survive summary judgment. In the motion for j u d g m e n t on the pleadings, Defendants make three additional arguments with respect to the FLSA and FW A claims: that Plaintiff is not entitled to emotional distress damages under the FLSA, that Plaintiff did not engage in protected activity under the FW A, and that Plaintiff may not sue for post-employment retaliation under the FW A. The Court rejects these 5

arguments.
Standard

Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to j u d g m e n t as a matter o f law. Celotex Corp. v. Catrett, 477 U.S. 3 1 7 , 3 2 2 (1986); Fed. R. Civ. P. 56. " A n issue o f fact is ' m a t e r i a l ' if, under the applicable substantive law, it might affect the outcome o f the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). " A n issue o f fact is ' g e n u i n e ' if the record taken as a whole could lead a rational trier o f fact to find for the nonmoving party." Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1 2 5 0 , 1 2 8 0 (11th Cir. 2004). Once a party properly makes a summary j u d g m e n t motion by demonstrating the absence o f a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use o f 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 323-24. P l a i n t i f f s evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make findings o f fact. Anderson, 477 U.S. at 249; Morrison