Lamonte v. Western & Southern Financial Group

Filing 45

ORDER & REASONS granting in part and denying in part 23 Motion for Summary Judgment & 32 Motion to Strike, as stated herein. Signed by Judge Martin L.C. Feldman on 1/30/2014. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GARY LAMONTE

CIVIL ACTION

v.

11-3079

WESTERN & SOUTHERN
LIFE INSURANCE CO.

SECTION "F"

ORDER & REASONS
Before the Court are defendant's motions for summary judgment
and to strike affidavits submitted by plaintiff.

For the reasons

that follow, the motions are GRANTED in part and DENIED in part.
Background
This is a wrongful termination lawsuit.
Gary Lamonte, a 63 year-old African American male, worked for
Western and Southern Financial Group (WSFG), a life insurance and
financial services company, for 15 years.

From 1995 to 1996 and

then from 2005 to 2010, Lamonte worked for WSFG as a sales
representative.

As a sales representative, Lamonte sometimes

traveled to customers' homes to collect their premium payments as
a convenience to them.
In January 2010, Lamonte began collecting premium payments
from a customer, Allen Poche, at his home in Hahnville, Louisiana.
Between January and August of 2010, Lamonte personally collected an
average of $175 a month in cash from Poche.

Although company

policy required Lamonte to timely remit each of these payments to
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WSFG, he failed to do so.

According to

Lamonte, he simply forgot

about the payments until Mr. Poche called him in August to ask why
the premiums had not been applied, at which point he checked the
payment history and realized his failure to remit.

In early

September, Lamonte remitted approximately $650, which he allegedly
believed was the full amount of the deficiency.
On August 31, 2010, Poche called WSFG's customer service
hotline to complain about the deficiency.

WSFG instituted an

investigation through its audit department, which revealed that
Lamonte collected and failed to remit $1,403.02 in premiums from
Poche, and that a loan had been taken out on Poche's policies
without his authorization.

The audit also revealed the $650

partial payment Lamonte had paid in September.
Meanwhile, Lamonte took time off on leave to undergo shoulder
surgery.

WSFG approved Lamonte's absence from September 2 to

December 5, 2010.
Scott

Kaplan,

investigation.

On September 20, 2010, plaintiff's supervisor,

called

him

to

inform

him

of

the

company's

On November 4, 2010, Lamonte met with Kaplan to

discuss the deficiency and to provide a written statement.

In his

statement, Lamonte explained that he "forgot" to turn in the
premiums, that he had tried to correct his mistake earlier but must
have miscalculated what he owed, and that he would now write a
check for the remaining deficiency.

Lamonte wrote a check to WSFG

that day in the amount of $759.68, the total deficiency still

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remaining according to the audit.
Nonetheless, WSFG decided to terminate Lamonte. As early as
October 27, 2010, Human Resources Manager James Hanseman drafted a
Corrective Action Recommendation outlining the details of the
investigation and concluding that Lamonte should be terminated.
The Vice President of Field Human Resources, Kim Chiodi, made the
final decision to terminate Lamonte.

Lamonte was notified of this

decision in person on November 12, 2010, when he stopped by the
office to pick up some andouille from a former coworker.

Notably,

Lamonte was still out of work on leave at that time.
Later that day, Lamonte emailed Crystal Rice, a Pension
Specialist

in

WSFG's

Benefits

Department,

with

the

following

message:
Crystal: As per out conversation today I'm giving western
southern life my thirty days notice of retirement
effective December 12th of this year 2010. I am selecting
option 2 as per my retirement estimate dated October 9
2010 - Gary J. Lamonte.
WSFG later denied Lamonte's request for early retirement on the
ground that it was made after his employment terminated.
In December 2011, Lamonte filed suit claiming violations of
his rights under the Employee Retirement Income Security Act
(ERISA),

the

Family

and

Medical

Leave

Act

(FMLA),

Consolidated Omnibus Budget Reconciliation Act (COBRA).

and

the

WSFG

now

moves for summary judgment, and to strike two affidavits submitted
by Lamonte in support of his opposition to the summary judgment

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motion.
I. Motion to Strike
Defendant moves to strike two affidavits plaintiff submits in
opposition to the summary judgment motion.

Rule 12(f) of the

Federal Rules of Civil Procedure provides that "the court may order
stricken

from

any

pleading

any

insufficient

defense

or

redundant, immaterial, impertinent, or scandalous matter."

any
Rule

56(e) provides:
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers
or parts thereof referred to in an affidavit shall be
attached thereto or served therewith.
Under Rule 402, evidence must be relevant to be admissible, and
Rule 401 defines relevance as "any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence."
Defendant urges the Court to disregard the affidavits of two
former WSFG employees, Earl Owens and Shawn Madere, on the grounds
that they contain statements not based on personal knowledge,
conclusory opinions, and irrelevant information.

Specifically,

Owens and Madere say it was "well-known" throughout the office that
plaintiff suffered various illnesses and planned to retire early,
that to their knowledge no other WSFG employee had been terminated

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under similar circumstances, and that in their opinions WSFG
terminated plaintiff to avoid paying benefits.

Plaintiff seeks to

limit the plain text of the affidavits and maintains that Owens and
Madere attest only to matters within the scope of their personal
knowledge and based on their experiences as former WSFG employees.
To the extent the Court finds certain plain statements contained in
the affidavits are certainly not based on personal knowledge or are
otherwise inadmissible, the Court will grant the motion and strike
the affidavits.
Rule 402.

The affidavits patently violate Rule 56(e) and

They offer rank hearsay and opinion testimony.

A

classic case of tainted evidence, no matter how plaintiff would now
twist their meaning.

But the grant of this motion is limited, as

will be outlined below.
II. Motion for Summary Judgment
A.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine issue of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

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Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents do not

qualify as competent opposing evidence.

Martin v. John W. Stone

Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Finally, in
evaluating the summary judgment motion, the Court must read the
facts

in

the

light

most

favorable

to

the

non-moving

party.

Anderson, 477 U.S. at 255.
B.
1.

ERISA Claim

ERISA makes it "unlawful for any person to discharge...a
participant or beneficiary for exercising any right to which he is
entitled under the provisions of an employee benefit plan...or for

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the purpose of interfering with the attainment of any right to
which such participant may become entitled under the plan."
U.S.C. § 1140.

29

To establish a prima facie case under ERISA, the

plaintiff must show: (1) an adverse employment action, (2) taken to
interfere with the attainment of (3) any right to which the
employee is entitled.

Bodine v. Employers Cas. Co., 352 F.3d 245,

250 (5th Cir. 2003). To make a prima facie case, the plaintiff must
prove that the defendant acted with specific discriminatory intent,
which may be established through direct or circumstantial evidence.
Nero v. Indus. Molding Corp., 167 F.3d 921, 927-28 (5th Cir. 1999).
If the plaintiff proves a prima facie case, then defendant "must
articulate a non-discriminatory reason for its actions, and then
the burden shifts to [the plaintiff] to prove this reason is
pretext."

Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755,

761 (5th Cir. 1996).
Defendant contends that plaintiff fails to prove a prima facie
case of an ERISA violation.

The Court disagrees.

Plaintiff has

produced sufficient circumstantial evidence, on the record now
before the Court, that he was terminated just weeks before he
planned to retire.

Although plaintiff did not submit his official

written request for early retirement benefits until shortly after
he received notice of his termination, evidence of record arguably
suggests that defendant knew of plaintiff's plans to retire and
might have desired to have plaintiff terminated as quickly as

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possible. Summary relief is inappropriate. For example, in August
2010, plaintiff requested a Retirement Annuity Estimate, and on
October 9, 2010 defendant provided him with the estimate based on
a projected early retirement date of December 1, 2010.

Plaintiff

also produces a November 1, 2010 email from Human Resources Manager
Jim Hanseman to Scott Kaplan regarding plaintiff's termination
stating that "we need to resolve the matter this week." The timing
of plaintiff's termination so shortly before his planned retirement
presents a possible tableau of discriminatory intent. See Nero, 167
F.3d at 927-28 ("[Plaintiff's] termination followed so shortly
after his claim to medical benefits that the jury could reasonably
infer a retaliatory motive.").
Defendant insists that plaintiff's failure to timely remit
premium payments was a legitimate, nondiscriminatory reason for his
termination.

Plaintiff admits he violated company policy and that

his actions were grounds for termination.

The issue then becomes

whether, in fact, this reason was pretext.

Defendant asserts

plaintiff presents no objective evidence of pretext, but plaintiff
maintains that his health problems and pending retirement, rather
than the Poche incident, actually motivated his discharge.

In

support, plaintiff validly points to, among other things, that part
of Earl Owen's affidavit recalling an instance when an agent was
fired only after repeatedly failing to remit premiums from multiple

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customers, after first being put on probation.1
The Court is persuaded that a genuine dispute regarding
whether

defendant's

proffered

reason

was

pretext

remains.

Defendant's knowledge of Lamonte's plans to retire, the timing of
plaintiff's termination, and the evidence that a similarly situated
employee was treated differently all preclude summary judgment.
2. FMLA Claim
The FMLA, 29 U.S.C. §§ 2601-54, protects employees from
interference with their leave under the Act and from discrimination
or retaliation for exercising their rights under the Act. Bocalbos
v. Nat'l W. Life Ins. Co., 162 F.3d 379, 382 (5th Cir. 1998). The
Court analyzes FMLA claims under the framework established in
McDonnell Douglas.

Id. at 383.

According to McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), the plaintiff must first make
a prima facie case, then the burden shifts to the defendant to
articulate

a

legitimate

non-discriminatory

or

non-retaliatory

reason for the adverse employment action, and then if the defendant
satisfies that burden, the plaintiff must prove the proffered
reason

is

just

pretext.

To

make

a

prima

facie

case

of

discrimination or retaliation under the FMLA, the plaintiff must

1

The Court specifically declines to strike this portion of the
Owens affidavit and finds that the statement was made based on
Owens' personal knowledge and competence as former WSFG
supervisor. See DIRECTV, Inc. v. Budden, 420 F.3d 521, 530
(5th Cir. 2005)(where familiarity with the issue is reasonably
within the affiant's "sphere of responsibility," the court can
infer personal knowledge).
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show that: (1) he was protected under the FMLA; (2) he suffered an
adverse employment action; and (3) either he was treated less
favorably than a similarly situated employee who had not requested
FMLA leave or that the adverse employment action was made because
he requested FMLA leave.

Bocalbos, 162 F.3d at 383.

Here, there is no dispute that plaintiff was protected under
the FMLA and suffered an adverse employment action.

Defendant

does, however, contend that plaintiff fails to show on this record
that he was treated less favorably than a similarly situated
employee

that

had

not

requested

leave

or

that

the

adverse

employment action was made because plaintiff requested leave.
Defendant maintains plaintiff was terminated solely based on the
deficiency.

Plaintiff, on the other hand, counters that defendant

intentionally interfered with his right to be restored to his
former position after returning from leave and both discriminated
and

retaliated

against

him

for

taking

leave.

The

Court

is

presented with a classic fact-intensive dispute.
Again, the Court is persuaded that summary judgment is not
appropriate on this record. Considering the same evidence outlined
above, and that plaintiff was on medical leave at the time he was
terminated, plaintiff at the least makes a prima facie case under
the FMLA, and a material factual dispute remains regarding whether
defendant's proffered reason is pretext.

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3.

COBRA Claim

Last, defendant contends that plaintiff's COBRA claim fails as
a matter of law, and that plaintiff admits he was informed of his
rights under COBRA and even participated in COBRA for several
months.

Plaintiff concedes as much.

Accordingly, defendant's motion to strike is GRANTED in part
and DENIED in part, and its motion for summary judgment is GRANTED
with respect to plaintiff's COBRA claim and DENIED with respect to
plaintiff's ERISA and FMLA claims, consistent with this Order and
Reasons.
New Orleans, Louisiana, January 30, 2014

____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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