Bartels v. Southern Motors of Savannah, Inc.
Filing
67
ORDER granting 40 Motion for Summary Judgment; denying as moot 30 Motion to Compel; denying as moot 28 Motion for Protective Order. The Clerk is directed to enter judgment in favor of Defendant 402 East Broughton Street, Inc., and is further directed to terminate all motions and deadlines and close this case. Signed by Judge J. Randal Hall on 03/28/2016. (thb)
IN THE
UNITED
FOR THE
STATES
DISTRICT
SOUTHERN DISTRICT
OF
COURT
GEORGIA
SAVANNAH DIVISION
DUANE BARTELS,
*
•
Plaintiff,
*
v.
*
4 02 EAST BROUGHTON STREET,
CV 414-075
INC.,*
d/b/a SOUTHERN MOTORS ACURA,
*
Defendant.
*
ORDER
Presently
before
summary judgment
(Doc.
the
Court
40).
is
Defendant's
For the reasons below,
motion
for
Defendant's
motion is GRANTED.
I,
The
present
with Defendant,
dispute
BACKGROUND
arises
f
2.)
Defendant
After
since
Court
interfered
Leave Act
Plaintiff
2004,
October 23, 2012.
this
of
Plaintiff's
employment
the owner and operator of Southern Motors Acura,
a car dealership in Savannah,
1,
out
Georgia.
worked
Defendant
(Bartels Decl.,
in
various
terminated
his
Doc.
56-
capacities
for
employment
on
In response, Plaintiff filed a complaint with
on
April
with
his
("FMLA"),
14,
right
2014,
to
29 U.S.C.
alleging
leave
that
under
the
Defendant
Family
had
Medical
§ 2601 et seq. , and had retaliated
against him for exercising this right.
(Doc.
1.)
The facts
underlying
Plaintiff's
favorable to him,
claims,
viewed
in
the
light
most
are as follows.
Originally hired by Defendant in 2004 as a wholesale parts
salesman,
parts
Plaintiff was promoted to service manager and service
director
late 2011.
manager,
before
becoming Defendant's
56-15,
two sons, Adam and Ross.
at 23-24; Adam Dep., Doc.
contributions
January 2012
sixteen
at
to
56-17,
(Adam Dep.,
over
Acura
2011.
56-17,
on
he
had
units
for
following text message:
2,
Doc.
Plaintiff,
The
Adam Dep.,
2012,
exceeded
the
months
from
had
sold
56-16,
Ex.
on multiple
the
Kaminskys.
Adam sent Plaintiff the following
at 152;
July
the
Defendant
(Myron Dep.,
reinforcement
2 012,
at 51.)
During
than
"Great job this month.
Doc.
that
vehicles
positive
on July 1,
Then,
sixty
in
(Myron Dep.,
Plaintiff oversaw the sale
For his performance,
received
text message:
statement
new
18-25.)
For example,
6.)
As general
Plaintiff made positive
business.
through September 2012,
same months
occasions,
at
Defendant's
more
during the
71-72,
in
Plaintiff reported to three of Defendant's six owners,
In his capacity as general manager,
of
manager
(Bartels Dep. I, Doc. 56-6, at 19, 44.)
Myron Kaminsky and his
Doc.
general
in
his
quarter,
xxOk cool.
report
Doc.
response
sales
goals
Ross
sent
Good job."
looks
56-18,
to
and
good!!"
Ex.
62,
Plaintiff's
had
moved
Plaintiff
the
(Bartels Dep.
II,
Doc.
56-8,
at 50-51;
Bartels Dep.
II,
Doc.
56-11,
Ex.
11,
at 9-
10.)
On October 12,
attended
a
doctor's
(Bartels Dep.
Plaintiff
than
2012,
I,
appointment
Doc.
56-6,
learned that
five
percent
well into his new position,
at
heavily
his
54-55.)
the.bones
and
with
of
his
At
pregnant
that
wife.
appointment,
unborn child were
curved."
walked outside of the hospital,
Plaintiff
(Id.
at
55.)
"less
As
he
Plaintiff called Myron to inform
him of this information and to relay that he would be attending
a perinatologist appointment with his wife later that day.
at 54-56.)
Myron replied by telling Plaintiff to stay in touch
and keep him informed.
a
voicemail
results,
(Id.
the
next
(Id.)
day,
Accordingly,
October
13,
Plaintiff left Myron
confirming
the
earlier
informing him of their next appointment on October 15,
and relaying that his
the pregnancy.
Defendant.
did
were
considering terminating
(Id. at 59-61.)
On October
Plaintiff
wife and he
14,
not
(Id.
a
day on which the
communicate
at
65.)
with
dealership
anyone
However,
was
closed,
affiliated
following
a
with
doctor's
appointment on October 15, Plaintiff sent a text message to Ross
informing him that he would be in touch with an update.
Dep.,
sent
Doc.
a
56-19,
at 113-14.)
text message
would be
attending
to
Myron
Then,
on the sixteenth,
indicating
an appointment
with a
that
his
Plaintiff
wife
specialist
(Ross
and he
that
day.
(Myron Dep.,
Also on
Ross
Doc.
the
56-15,
sixteenth,
saying
the
at
at
17.)
Plaintiff received a text message
from
following:
151;
"We
Ex.
all
49,
wish u
with baby.
She will be in our prayers."
at 119;
38,
Ex.
Doc.
Ultimately,
work.
on
(Bartels
arriving
that
56-16,
day,
I,
56-16,
beat
[sic]
of
luck
(Ross Dep., Doc. 56-19,
at 17.)
October
Dep.
Doc.
17,
Doc.
Plaintiff
2012,
56-6,
Plaintiff
at
received
29.)
a
returned
However,
phone
call
to
before
from
Ross
during which Ross stated that "life goes on, we have a business
to
run,
you
evening,
need
to
with Myron,
unborn
back
to
work."
Plaintiff attended a managers'
Tavern in Savannah.
met
get
(Id.
Ross,
daughter's
at
83.)
(Id.
at
meeting at
time
off
in
Plaintiff
and Adam and informed them that
bones
"were
less
than
the
the
future;
and
(3)
he
did not
That
the Exchange
At its conclusion,
percentile and they were heavily bowed and curved";
need
71.)
(1)
five
(2)
his
[sic]
he would
know
exactly
when he needed time off because the pertinent test results would
not be back for six weeks.
Meanwhile,
Katherine
Albert
volunteers
preparations
two
days
and
arrived
for
(Id.
later,
other
at
the
at 86-88.)
on
Historic
Defendant's
foundation's
Friday,
Savannah
October
Foundation
dealership
"After
Glow"
to
(Albert Aff., Doc. 40-1,
In
as
preceding
months,
she
arranged
make
benefit
held there the next night.
the
19,
for
2012,
("HSF")
final
to
%% 3,
be
6.)
Defendant's
dealership
to
hold
the
function
been introduced to Plaintiff
Rhinehart,
despite
Defendant's
Albert's
she
was
chairing,
as she met
had
with Myron or Mickey
longtime employee.
established
Albert
(Id.
relationship
UK 3-5.)
with
Yet,
Defendant,
Plaintiff approached her on the nineteenth and relayed that he
had a "bone to pick" with her.
(Albert Dep.,
Doc.
40-2,
at 39.)
Plaintiff stated to Albert that all of her planning should have
been coordinated through him and not through Rhinehart.
Aff.
U 5.)
Considering the manner in which Plaintiff spoke to
her to be
"extremely unprofessional,"
Plaintiff
demonstrated
inappropriate
Albert,
(Albert
and
other
Albert also alleges that
behavior
unprofessional.
that
% 6.)
(Id.
yet disputed by Plaintiff,
she
Plaintiff
considered
According
(1)
used profanity
when asking why he had not been given tickets to the event;
stated guests
at
his
own social
gatherings
to
used flowerpots
(2)
to
relieve themselves;
(3) used profanity when directing Albert not
to
for
move
his
assembled
coordinate
Dep., Doc.
desk
group
of
within
40-2,
Terri O'Neil,
event;
Defendant's
short
at 62-63,
Considering
embarrassing,"
a
the
time
(4)
employees
frame.
complained
about
(Id.
^
9-10;
an
need
the
to
to
Albert
66.)
Plaintiff's
Albert
and
behavior
telephoned
to
HSF's
be
"so
demeaning
development
director,
after she left the dealership on October 19.
part of that conversation,
and
As
Albert informed O'Neil that she would
not be returning to the dealership to fulfill her commitment as
"After
Glow"
premises."
chair
(Albert
unless
Aff.
then called Myron.
Plaintiff
told
Albert
at her and - [being]
as
he
that
then,
to
With this
to
Myron,
was
the
no
longer
on
information,
O'Neil
boss
O'Neil
disclosed
and
she
the
that
should
be
word this and - and just started cursing
inappropriate."
Plaintiff
Myron
(Myron Dep.,
the
Plaintiff
complaint
ladies and apologize.
later
apologized
phone on October 19
56-6,
receiving
called
inform him of
contact the
I, Doc.
"he
"was
Doc.
56-15,
at
Never "as embarrassed or as disappointed or as angry"
was
O'Neil
f 13.)
According
talking to him and XF'
167-68.)
Plaintiff
phone
and
(Id. at
O'Neil
for
after
to
167.)
his
O'Neil Dep.,
call
on
the
Doc.
Myron that Plaintiff had apologized.
him
to
to
Accordingly,
behavior
56-23,
nineteenth,
talking
instruct
and in person on October 20.
at 107;
his
to
soon
both by
(Bartels Dep.
at 43-46.)
O'Neil
After
relayed
to
(O'Neil Dep. at 46.)
Allegedly based solely on the information he received from
O'Neil regarding Plaintiff's conduct,
Plaintiff's
After
his
employment.
reaching
this
intentions.
(Myron
decision,
(Id.
at
Myron decided to terminate
Dep.,
Myron
158-60.)
Doc.
56-15,
informed Adam
at
158.)
and Ross
of
Having previously expressed
their concern over Plaintiff's effectiveness as general manager,
Adam and Ross
were
content
with their
father's
decision.
(Adam
Dep., Doc. 56-17, at 125-26; Ross Dep., Doc. 56-19, at 145-46.)
Therefore,
on
the
Myron and Adam met
room.
the
think
104.)
Then,
gotten
56-6,
telling
Plaintiff
the
Adam
together
Tuesday,
I, Doc.
by
[they were]
of
October
23,
2012,
with Plaintiff in the dealership conference
(Bartels Dep.
conversation
morning
biggest
relayed
over
the
at
103-04.)
that
shitbags
to
in
Plaintiff
previous
Adam initiated
he
the
going
to
(Id.
at
world."
that
weekend,
"was
the
family
discussed
had
matters,
and decided that October 23 would be his last day of employment.
(Id.)
Adam
further
stated
that
wrong" and that their decision was
(Id.)
Plaintiff
"had
done
nothing
"purely a business decision."
Myron then addressed Plaintiff stating that "he knew what
[Plaintiff]
was
miscarriage."
going
(Id. )
through
because
.
later,
separation
notice
had
that
had
they were
on
November
regarding
13,
2012,
Plaintiff's
Ross
49.)
Within
that
document,
completed
termination
that
Failure
to
subordinates,
work
well
with
community members,
a
was
(Ross Dep.,
Ross
Doc.
indicated
that
Plaintiff had been discharged for the following reasons:
1.
a
severance package and a letter
submitted to the Georgia Department of Labor.
at
.
(Id.)
Weeks
56-19,
.
Myron also told Plaintiff
going to give him a three months'
of reference.
Adam
others
and
(both
superiors).
For example:
-Acura representative would not visit store
due to poor relationship with [Plaintiff].
-Productive salespersons resign because
[Plaintiff's] temper and abrasiveness.
-Other
current
complaints.
employees
voiced
-Cursing at and upsetting
during fund raising event.
of
numerous
member
of
[HSF]
2.
Failure to meet minimum production requirements
(sales and finance agreed on by both parties at
time of promotion from service department).
3.
Use of company credit card for personal services.
(i.e.,
4.
meals)
Overall poor attitude which created hostile work
environment.
5.
Failure
to
properly
account
for
incentive
objectives which led to at least $160000 in lost
funds.
6.
Uncontrolled spending without approval
throughout
store.
(Ross Dep.,
reasons,
Doc.
56-20,
Plaintiff,
never disciplined,
during
56-19,
time
or
(Adam Dep.,
the
filed
Defendant
(Doc.
40) .
Wainwright,
as
general
told that he
Doc.
his
birth
of
complaint
his
56-17,
at
daughter
manager,
was
in
seeking
(Desiree Decl., Doc. 56-3, fl 5.)
9) ,
Despite these termination
was
in jeopardy
135;
Ross Dep.,
at 66-69.)
Following
Plaintiff
his
written up,
of losing his job.
Doc.
Ex. 8, at 1.)
filed
the
Thereafter,
772 F.2d 822,
825
under
the
2013,
FMLA.
After filing its answer (Doc.
instant
in
redress
February
motion
for
compliance
(11th Cir.
summary
with
1985)
judgment
Griffith
v.
(per curiam),
the
Clerk
provided
motion,
or
with
notice
the summary judgment rules,
other
default.
(Doc.
Plaintiff
materials
(Doc.
54),
filed a
in
41.)
sur-reply
opposition,
filed
(Doc.
a
66).
the
summary
judgment
the right to file affidavits
and
Subsequently,
Defendant
of
the
Plaintiff
reply
(Doc.
consequences
filed
62),
Consequently,
a
of
response
and
Plaintiff
Defendant's motion
is now ripe for the Court's consideration.
II,
Defendants'
motion
DISCUSSION
for
summary
judgment
will
be
granted
only if "there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed. R.
Civ.
if
P.
could
56(a).
affect
In this
the
substantive law.
248
(1986) .
Court
Real
of
Anderson v.
view
the
party,
Corp. , 475 U.S.
inferences
outcome
facts
the
are
suit
"material"
under
Liberty Lobby,
in
Prop. ,
in
Matsushita
574,
[its]
941
facts
587
Elec.
(1986),
favor,"
F.2d
the
1428,
light
most
Indus.
the
Inc.,
In evaluating the contentions of
must
non-moving
context,
Co.
they
governing
477 U.S.
242,
the parties,
the
favorable
the
v.
to
Zenith Radio
and must draw "all justifiable
United
1437
States
(11th
v.
Four
Cir.
1991)
Parcels
(en
of
banc)
(internal punctuation and citations omitted).
Initially,
the moving party bears the burden and must show
the Court, by reference to materials on file, the basis for the
motion.
Celotex
Corp.
v.
Catrett,
477
U.S.
317,
323
(1986).
How
to
proof
carry
at
1115
this
trial.
(11th
burden
depends
Fitzpatrick v.
Cir.
1993) .
When
on
who
the
the movant may carry the
of
by
ways
—
negating
an
2
non-movant
proof at trial,
two
the
Atlanta,
City of
bears
has
burden
F.3d
the
of
1112,
burden
of
initial burden in one
essential
element
of
the
non-
movant's case or by showing that there is no evidence to prove a
fact necessary to
Clark,
Inc.,
Adickes
v.
477 U.S.
met
its
929
S.H.
F.2d 604,
Kress
317).
opposition,
the non-movant's
&
case.
606-08
Co.,
398
See
(11th Cir.
U.S.
144
Clark v.
1991)
(1970)
Coats
&
(explaining
and
Before evaluating the non-movant's
Celotex,
response
in
the Court must first consider whether the movant has
initial
burden
of
showing
that
there
are
no
genuine
issues of material fact and that it is entitled to judgment as a
matter
of
law.
(11th Cir.
the
1997)
(per curiam).
non-movant
Clark,
there
is
may
City
the
of
Columbus,
120
F.3d
248,
254
A mere conclusory statement that
burden
at
trial,
the movant
avoid
indeed
summary judgment."
proof
meet
and only if —
non-movant
that
cannot
v.
at
trial
is
insufficient.
929 F.2d at 608.
If —
the
Jones
Id.
a
summary
material
carries
judgment
issue
of
its
by
fact
initial burden,
"demonstrat[ing]
that
precludes
When the non-movant bears the burden of
the non-movant must
tailor its
response
method by which the movant carried its initial burden.
to the
If the
movant presents evidence affirmatively negating a material fact,
10
the
non-movant
withstand
fact
a
"must
directed
sought
to be
the movant
shows
non-movant
must
that was
with
verdict
negated."
either
with
motion
show
motion
deficiency."
at
that
relying
burden by
at
on
the
based
1117.
the
1032,
1033-34
to
on
The
Cir.
on
the
F.3d at
If
fact,
contains
to
material
1116.
material
withstand
the
alleged
non-movant
pleadings
(11th
2
record
or
allegations contained in the complaint.
F.2d
trial
sufficient
the
evidence
by the movant or "come forward
sufficient
trial
Id.
at
evidence on a
uoverlooked or ignored"
evidence
evidence
Fitzpatrick,
an absence of
additional
verdict
respond
by
a
directed
evidentiary
cannot
repeating
carry
conclusory
See Morris v. Ross,
1981).
Instead,
the
its
663
non-movant
must respond with affidavits or as otherwise provided by Federal
Rule of
Civil
Procedure
56.
A.
Under
(1)
the
the
employee
employer denied
Supply,
FMLA,
Inc.,
FMLA
an
was
[him]
Interference
interference
entitled
to
claim
a
benefit,
that benefit." White v.
789 F.3d 1188,
1.
1191 (11th Cir.
(1)
"suffer
from
two
and
elements:
(2)
[his]
Beltram Edge Tool
2015).
Benefit Entitlement
To be entitled to an FMLA benefits,
alia,
"has
a
serious
an employee must,
health
condition
that
inter
makes
[him] unable to perform the functions of [his] position" and (2)
"give proper notice" to his employer.
11
Id. at 1194-95.
a.
Serious Health Condition
Under 29 C.F.R.
FMLA
leave
if
§ 825.120(a)(5),
needed
to
care
"[a]
for
a
spouse is entitled to
pregnant
spouse
who
is
incapacitated or if needed to care for her during her prenatal
care,
or
if
child
if
needed
she
to
has
a
care
for
serious
her
following
health
the
birth
condition."
of
a
Similarly,
" [b]oth parents are entitled to FMLA leave if needed to care for
a child with a
§§
825.113
serious health condition if
through
825.115
and
the requirements of
825.122(d)
are
met."
Id.
§
825.120(a)(6).
A
"serious
impairment,
inpatient
care
health
in
facility;
or
provider."
29
determination
Rather,
is
"an
illness,
or physical or mental condition that
care
"evidence
condition"
a
(B)
U.S.C.
on
this
received by
the
hospital,
Court
at
continuing
§
the
Id.
1194-95
employer
...
to
the
Court
"all
("It
make
is
by
not
White,
789
available
may
the
first
involves []
residential
However,
employer."
use
or
treatment
2611(11).
issue,
should
inquiry.
hospice,
injury,
a
medical
health
in
to
at
evidence"
seem
care
making
limited
F.3d
(A)
unfair
a
the
1194.
in
its
to
the
serious-health-condition
determination using evidence that the employer did not see until
after it made the determination.
But
. . . other provisions in
the FMLA protect employers from being sandbagged.").
12
Here,
Plaintiff has provided enough evidence to produce a
genuine dispute as to whether his wife and his daughter had a
serious
health
leave.
First,
"perform
daughter
the hospital
825.114.
"a
by
a
was
involving
health
remained
due
to
health
care
employee's
in
the
for two nights,
inpatient
b.
entitled
30
days'
as
provider."
impracticable,
notice
as
October 17,
notice
of
[his]
as
29
2012,
§
because
care
serious health
C.F.R.
§§
825.113-
need
for
notice,
FMLA
White,
need
leave
789
for
must
F.3d at
leave
is
he must give his employer "at least
unless
practicable.'"
By
to
C.F.R.
intensive
she had a
when an employee's
giving
informing
Id.
the
30
days'
notice
(quoting
Kaminskys
on
is
xsuch
29
U.S.C.
§
the
evening
of
that he would need time off in the future as a
result of his wife's pregnancy,
dispute
29
in which case the employee must give only
is
2612(e)(2)).
involving
Additionally,
neonatal
care.
pregnancy,
tt 5-6.)
it is here,
advance
FMLA
Proper Notice
Regarding notice,
foreseeable,
her
condition
satisfy two criteria - notice and content."
1195.
to
hospitalized and thus unable to
serious
(See Desiree Decl.
"An
he
(See Desiree Decl. ff 5-6.)
Plaintiff's
condition
which
activities"
had
treatment
825.115(b).
of
daily
wife
continuing
for
because she was
other
Plaintiff's
unit
condition
whether
the
Plaintiff has
timing
13
of
his
raised a genuine
FMLA
notice
was
sufficient.
notice,
that
As
that
the
for
the
is a more
contents
of
sufficiency
of
the
difficult question.
an
employee's
contents
The
notice
be
of
his
FMLA requires
"'sufficient
to
make the employer aware that the employee needs FMLA-qualifying
leave,
and
leave.'"
[of]
the
anticipated
at
1196
(quoting 29
Id.
there,
when
the
employer
that
employer
must
qualifies
employee
potentially
then
for
825.303(b))(internal
C.F.R.
gives
and
§
whether
protection."
quotation
notice
leave
the
Id.
duration
is
and
the
"From
to
[his]
needed,
employee's
(citing
marks
of
825.302(c)).
sufficient
FMLA-qualifying
ascertain
FMLA
timing
29
other
the
absence
C.F.R.
§
citations
omitted).
In this
Plaintiff
acronym
used
"FMLA"
Kaminskys.
that he
case,
the
the
at
However,
Court
words
any
"Family
point
was
experiencing problems
his
wife
specialist;
in
no
evidence
Medical
his
indicating that
Leave
Act"
conversations
or
the
with
the
Plaintiff has produced evidence indicating
informed Myron of the
had' seen
finds
following:
(1)
his pregnant wife
with their unborn child;
multiple
doctors,
including
at
(2)
he
and
least
one
(3) he would need time off in the future as a result
of this complicated pregnancy;
and
(4)
he did not know exactly
when he would need time off because important test results would
not
be
that,
back
with
for
six weeks.
respect
to
his
Additionally,
the
communications
14
record reflects
with
Defendant,
Plaintiff was fully transparent and timely forthcoming "with as
much information as
Express
Corp.,
[he]
461
F.
had available to
App'x
876,
883
[him]." Wai v.
(11th Cir.
Federal
2012) .
Thus,
given the information provided and Plaintiff's completeness and
timeliness
in
providing
it,
the
Court
finds
that
a
genuine
dispute exists as to whether notice was adequately given.
See
id.
2.
Benefit Denial
An employee's right to FMLA leave has been interfered with,
quite
clearly,
avoid
having
rights once
when
to
becomes
Inc.,
"an employee can be
[his [
right
FMLA,
if
the
any request
F.3d
1231,
inquiry
as
regardless
Court's
to
of
whether
his
query as
BBVA
4715865,
Compass
at
*16
Pereda v.
(11th Cir.
thereby
Krutzig v.
2010).
an
employee
FMLA request
is
Pulte
simply a pretext
(N.D.
Ala.
Sept.
15
regardless
Home
have
22,
Corp.,
the
been
essentially the
No.
Yet,
violating
the
of
602
Court's
dismissed
as
the
asserted reasons
for
for retaliation.
Inc.,
leave
2012).
Consequently,
to whether an employer's
FMLA
to
from exercising
dismissed
would
order
Brookdale Senior
without
been
"in
rightful
[him]
Cir.
Bancshares,
him
preventing
FMLA,
leave."
with
1275
would have
(11th
termination are
v.
dismissed,
FMLA
1236
[him]
eligible."
commence
for
terminates
666 F.3d 1269,
employee
to
employer
accommodate
[he]
Living Cmtys.,
his
same
See Hawkins
2:12-CV-03922,
2014) .
For this
2014
WL
reason,
the ability of
Plaintiff's FMLA interference claim to withstand
summary judgment
will
depend upon
the outcome
of
the pretext
determination below.
B.
To
establish
a
"must
show
Plaintiff
protected
action;
activity;
and
protected
Mary's
prima
facie
that:
case
(1)
he
(2)
he
experienced
is
a
activity
and
Care
the
Sys.,
causal
adverse
Inc.,
439
F.3d
to
defendant
adverse action."
must
then
show
Id.
that
articulate
an
a
employment
between
Hurlbert
the
v.
St.
(11th
1297
Cir.
"the burden then shifts
legitimate
defendant's
statutorily
adverse
1286,
"If the defendant does
the
retaliation,
in
action."
If Plaintiff makes this showing,
to
FMLA
connection
2006) .
the
of
engaged
there
(3)
Health
FMLA Retaliation
reason
so,
proffered
for
the
the plaintiff
reason
for
the
adverse action is pretextual." Id.
Based
analysis
on
the
above,
Plaintiff
genuine
dispute
by
FMLA
the
Pereda,
666
evidence
as
and
submitted
has met
to whether he
suffered
F.3d at
1276
an
his
the
burden of
engaged
adverse
("[A]
and
interference
establishing a
in activity protected
employment
pre-eligible
action.
request
for post-
eligible leave is protected activity.").
Additionally,
Plaintiff
days
was
terminated
less
than
seven
Defendant of his future need for leave,
after
See
because
informing
a genuine dispute exists
regarding whether Plaintiff's invocation of his FMLA rights was
16
the cause of
("Close
his
temporal
adverse
proximity
employment
circumstantial
fact
termination.
of
a
Telecomms.,
Moreover,
between
action
evidence
causal
See Hurlbert,
to
connection.'"
Inc.,
231
F.3d
protected
is
create
439
F.3d at
conduct
generally
a genuine
(quoting
791,
and
an
xsufficient
issue
Brungart
799
1298
of
material
BellSouth
Cir.
(11th
v.
2000))).
with evidence indicating that Plaintiff was terminated
because of his behavior toward Albert,
Defendant has provided a
legitimate
to
reason
Accordingly,
determine
in
for
its
its
decision
remaining
whether Plaintiff
terminate
the
analysis,
has
Plaintiff.
need
Court
submitted sufficient
only
evidence
to
withstand summary judgment on the issue of pretext.
"A
plaintiff
may
persuading
the
court
motivated
the
show
that
employer
a
pretext
'either
discriminatory
or
indirectly
directly
reason more
by
showing
by
likely
that
the
employer's proffered explanation is unworthy of credence.'" Diaz
v.
Transatlantic
2010) (quoting Tex.
248,
256
1160,
merely
F.
Cmty.
do
v.
(11th
quarrel
in
the
Cnty.
Cir.
with
the
App'x
93,
Affairs
so,
implausibilities,
Brooks
1163
of
To
contradictions'
(quoting
367
Dep't
(1981)).
'weaknesses,
or
Bank,
"a
v.
97
Burdine,
plaintiff
may
inconsistencies,
employer's
Comm'n
2006)).
of
"However,
wisdom
17
of
the
a
Cir.
450
point
U.S.
to
incoherencies,
proffered
Jefferson
(11th
reason."
Cnty.,
446
plaintiff
employer's
Id.
F.3d
cannot
reason,
but
must
meet
quotation
the
reason
marks
and
proximity
action
on
citation
between
employment
head
the
and
rebut
omitted).
protected
is
evidence
it."
While
Id.
(internal
close
temporal
activity
and
pretext,
it
of
an
adverse
is
"probably
insufficient to establish pretext by itself." Hurlbert,
at
1298.
Other
significant
evidence
includes
of
"an
pretext
that
employer's
courts
failure
439 F.3d
have
to
found
articulate
clearly and consistently the reason for an employee's discharge"
and "an employer's deviation from its
Id.
at
In
argues
own standard procedures."
1298-99.
addition
that
termination
to
six
the
close
other
rationale
temporal
factors
was
proximity,
indicate
pretext.
that
Those
Plaintiff
Defendant's
factors
and
their
significance are addressed below.
1.
As
stated
Separation Notice
within
the
Kaminskys'
highlighted by Plaintiff's sur-reply,
depositions
the decision to
Plaintiff was made by Myron.
(Myron Dep.,
59;
55-56;
Adam Dep.,
147-48;
PL's
Doc.
Sur.,
after Plaintiff was
notice
of
56-17,
Doc.
separation
termination.
56-20,
8,
at
66,
at
7.)
Doc.
Ross Dep.,
However,
informed of this decision,
Plaintiff's
Ex.
at
1.)
providing
(Ross
While
at
Dep.,
least
Doc.
acknowledging
18
and
terminate
56-15,
Doc.
six
56-19,
that
at
157-
56-19,
almost
Ross
as
a
at
month
completed a
reasons
at
49;
Defendant
for
Doc.
has
disavowed
any
Albert,
reason
Plaintiff
demonstrates
judgment.
an
of
In each of
ruled
employer
"shifting
the
divert
the
notice
Plaintiff's
the
reasons,
sufficient
list
to
toward
of
reasons
withstand
at 21-22.)
reasons"
summary
In support of his
in
courts'
submitted by Plaintiff,
dismissed
from
case,
Plaintiff's
Thus,
this
conduct
pretext
at 22.)
cases
a
diverted
not
for
(Id.
for
in this
While
that
inconsistency
determinations.
did
contends
Plaintiff's
Plaintiff points to a number of cases highlighting the
significance
Yet,
than
(PL's Resp., Doc. 54,
position,
court
other
employee
its
proffered
the
listed
additional
toward
that
an
rationale.1
separation,
fewer
termination,
behavior
finding
termination
reason
no
relevant
within its notice of
Defendant,
from
after
the
it,
Myron
than
five
as
a
provided
Plaintiff.
additional
importantly,
Albert
reasons
terminated
also
reasons
referenced
contributing
are
not
reason.
contradictory
but rather supplementary ones offered by Ross - one who
was not the ultimate decision maker on this issue.2
As a result,
Plaintiff's argument and the cases raised are unpersuasive.
1
See
Cleveland v. Home Shopping Network,
Inc.,
Cir. 2004); Carlton v. Mystic Transp., Inc.,
2000); Bechtel Constr. Co. v. Sec'y of Labor,
1995);
*3
Crabbe v.
(W.D.
Auth. , No.
Okla.
Am.
Apr.
Fid.
30,
1:11-CV-02108,
Assurance Co.,
2015);
No.
at
Stallworth v.
E-Z Serve Convenience Stores,
125304, at *4 (M.D. Ala. Feb. 12, 2001).
2
F.3d 1189,
CIV-13-1358,
Connelly v.
2012 WL 6765579,
369
Metro.
(11th
2015 WL 1977380,
Atlanta
*10
(N.D.
No.
A.
Ga.
Rapid
Dec.
99-D-1503-N,
Plaintiff disputes the validity of these supplemental reasons.
19
1195
202 F.3d 129, 137 (2d Cir.
50 F.3d 926, 934 (11th Cir.
at
Transit
7,
2012);
2001
WL
2.
Myron's Knowledge
Plaintiff next contends that because Myron had insufficient
knowledge
regarding
Defendant's
(PL's
Plaintiff's
proffered
Resp.
at
unpersuasive.
behavior
termination
23.)
The
toward
rationale
Court
is
finds
Albert,
pretextual.
this
argument
Plaintiff has not offered sufficient evidence to
rebut the fact that O'Neil informed Myron of the following prior
to
his
termination:
(1)
Plaintiff
told Albert
boss and she should be talking to him";
"F"
word
in
otherwise
speaking
"cursing at
Dep., Doc.
with
Albert;
her and -
[being]
"he
was
the
Plaintiff used the
and
56-15, at 167-68; O'Neil Dep.
3.
(2)
that
(3)
Plaintiff
inappropriate."
was
(Myron
at 40-42.)
Plaintiff's Apology
Plaintiff also argues that the following present a genuine
dispute
as
pretextual:
and
made
response"
[O'Neil]
to
(1)
whether
Myron's
termination
rationale
was
Myron's knowledge that Plaintiff had "apologized
things
right
upon
with
learning
O'Neil"
that
and
(2)
Plaintiff
for any bad behavior."
Myron's
had
(PL's Resp.
"positive
"apologized
at
24.)
to
However,
simply because Myron knew that Plaintiff had "made things right
with
O'Neil,"
it
does
not
moved beyond the incident.
necessarily
Plaintiff's
apology
that
Myron
had
The Court finds Plaintiff's evidence
indicating that Myron gave a
of
follow
"positive response"
insufficient
20
for
it
to
upon learning
conclude
that
Myron's termination rationale was not "an honest explanation for
why he fired [Plaintiff]."
(Id.)
Put another way, this evidence
does not constitute a head-on rebuttal of Defendant's proffered
reason for termination.
a
plaintiff
employer's
cannot
reason,
See Diaz,
merely
but
367 F. App'x at 97
quarrel
must
meet
with
the
the
reason
("However,
wisdom
head
on
of
and
the
rebut
it.")(internal quotation marks and citation omitted).
4.
Defendant's Toleration of Misconduct
Plaintiff further asserts that because Myron has overlooked
similar employee misconduct in the past,
his failure to do so in
this
Specifically,
instance
highlights
clients
is
evidence of
pretext.
that Myron did not
have
their deal"
called
with
terminate
(1)
" [c]onfusion"
and
Plaintiff
Rhinehart
when his
"complaints
half a dozen times over seventeen years;
(2)
about
Dennis
i
Purcell when
"he got
the car lot"; or (3)
drugs
in
front
"A
56-4,
typical
fistfight with another salesman on
Jarred Pratt when he was routinely "high on
of
unconsciousness."3
Decl., Doc.
into a
customers
and
(Rhinehart Dep.,
.
Doc.
.
.
56-21,
slipping
at
77;
into
Jacoby
Kf 4-7.)
means
comparator evidence."
of
Moon v.
establishing
Kappler,
pretext
Inc.,
No.
is
through
4:13-CV-1992,
3
The evidence regarding Purcell and Pratt comes to the Court through the
declaration of Fred Jacoby.
(Doc. 56-4.)
Defendant objects to this evidence
on the grounds that Jacoby lacks personal knowledge and that his statements
are without probative value.
(Doc.
61 at 13-14.)
After reviewing
Defendant's arguments, the Court overrules its objections.
The Court is
satisfied that Jacoby's statements are based on personal knowledge and are
sufficiently probative.
21
2015
WL
2381061,
employer
pretext
Sch.
is
Bd. , 244
"a
at
in
*21
FMLA
F.3d 1253,
[the
what
the phrase
is clear that
employees
Id.
1259
May
v.
(analyzing
Orange
2001)).
who
Id.
"While
(internal
there
has
'similarly situated'
the
quotation
been
some
'similarly situated'
in
all
to
same
severely
marks
dispute
in this
plaintiff
Cnty.
A comparator
committed
means
the burden is on the
were
2015)
Silvera
(11th Cir.
employee
19,
but who was disciplined less
plaintiff]."
citation omitted) .
Ala.
suit)(citing
similarly-situated
violation of work rules,
than
(M.D.
and
as
to
context,
it
show that the
relevant
respects."
(internal quotation marks and citation omitted).
After a
that
these
genuine
actions,
review of
prior
dispute
the
mistreatment
Rhinehart's
hardly the
as
a
to
of
of
Purcell
as
can be
the
employee
employer
potential
conduct
same
evidence,
instances
behavior
of
this
and
Unlike
Pratt
or
classified as
cannot conclude
misconduct
pretext.
customer
Plaintiff's.
Court
does
third
such,
At worst,
indicate
Plaintiff's
not
constitute
party.
his
a
Though
actions
Rhinehart
are
led third
parties to believe that they were getting a more favorable deal
than they were.
is
accused
of
(Rhinehart Dep.
intentionally
at
77.)
directing
inappropriate behavior at a third party.
22
Conversely,
profanity
and
Plaintiff
otherwise
5.
Plaintiff
past
also
employee
pretext
Termination of Past Employees
who
in his
states
"needed
case.
wife
had
or
Defendant's
requested
In particular,
fact that Rhinehart was
Thompson's
that
leave"
diagnosed
is
Plaintiff
"directed to fire
been
termination
with
of
evidence
points
of
to the
[Doug Thomson]" after
"serious
respiratory
problems and septic shock."4 (Thomson Decl., Doc. 56-5, f 4.)
Thomson's
a
In
words:
Shortly
[after
learning
of
my
wife's
diagnosis], I was told that I had to show up
for a sales meeting on my day off.
During
the sales meeting, a sales consultant and I
got into a debate about a sales technique
and, at one point, I said I did not agree
with him but in any event, my wife was ill
and
I
should
not
even
be
there.
A
finance
manager and a sales manager told me to go
home and take some time off because of my
wife, which I did.
When I returned, Mickey
Rinehart [sic] brought me into a meeting and
fired me.
He told me that my recent sales
were
not
high enough,
and that
he
was
directed to fire me.
(Id.)
4
For the same purpose,
Plaintiff offers the following statement
by Fred
Jacoby: WI later heard from [Plaintiff] that Myron Kaminsky directed him to
fire [Michael] Johnson because 'they couldn't have a guy with heart issues
working'
at
the
dealership."
(Jacoby
Decl.
^
8.)
instructing Plaintiff to fire Johnson as a result of his
ordinarily be admissible as an opposing party's statement.
801(2).
However, because this statement comes to the
Plaintiff's hearsay statement,
it
is not admissible
statement falls within an applicable exception.
See Fed.
Myron's
statement
heart issues would
See Fed. R. Evid.
Court only through
unless
Plaintiff's
R. Evid. 801, 805.
Accordingly, because Plaintiff's statement does not fall within an exception,
this statement, in its entirety, is inadmissible.
See Jones v. UPS Ground
Freight, 683 F.3d 1283, 1293 (11th Cir. 2012).
Thus, Defendant's objections
as to paragraph eight of Jacoby's declaration are sustained.
(Doc. 61 at 1415.)
23
While
relevant
the
to
Court
its
to
suggest
feared an
that
(2)
whether
nserious
his
failure to indicate
termination
request.
"fail [ing]
to
Yet,
belied
sell as
probative
Brooks,
plaintiff]
showing
the
F.3d
must
that
the
the
fact
many cars
Thomson's
allow Plaintiff
446
its
Defendant
conclusion
is
whether the person
wife's
have
meaning
condition;
constituted
of
29
a
U.S.C.
§
or even planned to make,
most
significantly,
that
...
because
his
would
perhaps
Accordingly,
within
to
questions
Thomson
as
this
admitted
to
the Kaminskys had set
- the very reason that Thomson was given for
termination.
information
by
and
this
(1)
of
whether Thomson made,
for me as a goal"
his
knew
within
an
is
However,
condition"
(3)
admissible
Court
terminated
condition
and
conclusion
was
wife's
2611(11);
as
this evidence can be viewed in a
Thomson
his
health
FMLA
the
FMLA request.
belied by Thomson's
for
evidence
Certainly,
imminent
responsible
this
inquiry,
present
probative value.5
way
views
at
1163
introduce
asserted
the
Court
declaration
to
survive
(xx[T]o
avoid
is
to
not
be
find
summary
judgment
probative
merely
a
the
sufficiently
summary judgment.
significantly
reason
does
See
[the
evidence
pretext
for
discrimination.")(internal quotations and citation omitted).
5
To the extent out-of-court statements within the excerpt are offered for
the truth of the matter asserted within, they are statements of an opposing
party and are therefore admissible.
See Fed.
R.
Evid.
Consequently, Defendant's objection (Doc. 61 at 15) is overruled.
24
801(d)(2).
6.
Statements Made by Defendant on the Termination Date
At
the
Plaintiff
termination
were
present,
nothing wrong"
decision."
that
they
Plaintiff
Adam
and that
argues
told
which
Plaintiff
I at 104.)
Plaintiff
that
at
their decision was
(Bartels Dep.
terminated
meeting
that
Myron,
he
and
"had done
"purely a business
Because Defendant contends
for
Defendant's
Adam,
his
conduct
rationale
at
toward Albert,
the
termination
meeting is inconsistent and is thus evidence of pretext.
As Plaintiff maintains,
his
the rationale given to Plaintiff at
termination meeting and the one now advocated by Defendant
are inconsistent.
As a result,
Plaintiff has produced evidence
that "may permit the trier of fact to conclude that the employer
unlawfully discriminated."
Inc. , 530 U.S.
133,
148
"always be adequate
Id.
"Certainly
plaintiff
sufficient
rational
has
there
evidence
the
something
Id.
defendant
other
Sanderson Plumbing Prods.,
Yet,
such a
sustain a jury's
will
to
factfinder
v.
(2000) .
established
discriminatory."
that
to
Reeves
be
a
reject
could
For
gave
than
finding of
instances
prima
the
the
where,
facie
case
defendant's
conclude
instance,
that
"'if
false
114 F.3d 1332,
1338
25
although
and
(2d Cir.
set
the
the
forth
explanation,
no
action
was
show
explanation
discrimination,
liability."
circumstances
the
the
discrimination will be weak or nonexistent.'"
v. Vassar Coll.,
showing will not
Id.
to
conceal
inference
of
(citing Fisher
1997)).
Thus,
not
must
in
limit
statement.
evaluating the
its
The
inconsistency at
inquiry
Court
to
must
simply
hand,
the
Court
contents
of
consider
also
the
Adam's
evidence
indicating
that (1) Adam began the termination meeting by telling Plaintiff
that he "was going to think
[they were]
the
told
world";
(2)
also
was
[Plaintiff]
Myron
going
through
miscarriage";
(3)
severance
package
statement
that
messages
that,
they
Myron
and
a
offered
"Adam
Kaminsky
prayers
with
Plaintiff
because
letter
for my
bad
for
characterization of
Plaintiff's
me";
some
termination,
that
Adam
.
Plaintiff
of
Ross
baby";
"he
.
a
. had
(4)
Kaminsky
(5)
knew
three
reference;
and
at his termination meeting,
"felt
the biggest shitbags in
what
had
a
months'
Plaintiff's
sent
Plaintiff's
me
text
statement
Adam and Myron expressed that
and
(6)
of Myron's
Plaintiff's
statements,
as expressions
of
on
in-brief
the
day
sympathy.
of
(Bartels
Dep. I at 104; Bartels Decl., Doc. 56-1, tt 6, 8; PL's Resp. at
26.)
Evaluating
this
evidence
in
the
evidence presented on the issue of
Court
finds
initial
that
reasonable
jury
termination
rationale
was
termination
feelings
Plaintiff's
no
discriminatory intent.
of
explanation
sympathy
Rather,
was
that
context
could
of
all
other
termination,
find
given
to
that
the
Adam's
conceal
a
the Court finds that the initial
indisputably
both
26
Myron
given
and
to
further
Adam
the
carried.
Consequently,
the
Court
is
left
only
with
the
close
temporal
proximity between Plaintiff's FMLA notice and his termination on
which
to
Court
cannot
whether
base
its
pretext
conclude
Defendant's
pretextual.
determination.
that
a
genuine
legitimate
For that reason,
Without
dispute
termination
more,
exists
the
as
to
rationale
summary judgment is
was
proper as
to
both Plaintiff's interference claim and his retaliation claim.
Ill,
For
for
the
reasons
above,
the
Court
(Doc.
40)
and accordingly DENIES
summary judgment
Defendant's
motion
for
Plaintiff's motion to
to
ENTER
Street,
JUDGMENT
Inc.,
and deadlines
and
favor
further
and CLOSE
(Doc.
of
Defendant's
order
30).
to
motion
MOOT
28)
(Doc.
AS
and
The Clerk is directed
Defendant
directed
4 02
East
TERMINATE
Broughton
all
motions
this case.
ORDER ENTERED at Augusta,
March,
GRANTS
protective
compel
in
is
CONCLUSION
Georgia,
this _j^f_ day of
2016.
HONORABLE
J.
RANDAL
HALL
UNITED/STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
27
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