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Pecora v. ADP, LLC

United States District Court, M.D. Florida, Tampa Division

February 7, 2017

PHILIP PECORA, Plaintiff,
v.
ADP, LLC, Defendant.

          ORDER

          JAMES D. WHITTEMORE, United States District Judge

         BEFORE THE COURT is Defendant's Motion for Summary Judgment (Dkt. 28), Plaintiffs response in opposition, (Dkt. 41), and Defendant's reply. (Dkt. 44). Upon consideration, Defendant's motion is GRANTED on Plaintiffs FMLA retaliation, ADA, and FCRA claims, and DENIED on his FMLA interference claim.

          I. BACKGROUND

          Plaintiff worked in sales for Defendant. (Dkt. 28 at p. 4; Dkt. 41 at p. 1). His performance was evaluated largely on his ability to meet quotas for new customer interactions, potential sales, and closed sales. (Dkt. 28 at pp. 5-6). In Defendant's business, the amount of time between the first contact with a prospective customer and the time of closing a sale can range from a week on the short end to several months on the long end. (Galloway Deposition, Dkt. 39-13 at 28:13-22).

         From December 2013 to July 2014, Reginald Campbell was Plaintiffs direct supervisor. (Campbell Declaration, Dkt. 28-3). Beginning in May 2014, Plaintiffs performance began to decline, including taking several sick days and failing to make any progress towards his quotas. (Dkt. 41 at p. 2). Plaintiff testified that he advised Campbell around this time that he was dealing with anxiety and drinking a lot because of personal problems at home. (Plaintiff Deposition, Dkt. 29-1 at 147-148). [1]In July 2014, Dina Galloway became Plaintiffs supervisor. (Galloway Declaration, Dkt. 28-2). Plaintiff testified that he shared less information about his issues with Galloway than he had with Campbell, but informed Galloway that he was having "a ton of anxiety" about his personal, issues at home that affected his ability to focus at work. (Plaintiff Deposition, Dkt. 29-1 at 151 -153).

         On August 28, 2014, Galloway informed Campbell that she wished to issue a written warning to Plaintiff, and Campbell agreed with Galloway's decision. (Galloway Declaration, Dkt. 28-2; Campbell Declaration, 28-3). Campbell and Galloway issued a Written Warning ("Initial Warning") to Plaintiff on August 29, 2014. (Dkt. 39-2). The Initial Warning set performance standards that Plaintiff was expected to meet to demonstrate improvement. (Dkt. 39-2). At no time during the discussion about the Initial Warning did Plaintiff indicate that he was suffering from depression, anxiety, or issues with alcohol, or indicate that he had any problems other than going through the, "saddest experience" of his life at home. (Galloway Declaration, Dkt. 28-2; Campbell Declaration, Dkt. 28-3; Plaintiff Deposition, Dkt. 29-1 at 163-164). Plaintiff testified that he does not believe Defendant issued the Initial Warning because of any disability he had. (Dkt. 29-1 at 156-157).

         After the Initial Warning, Plaintiff was absent from work the next two business days and told Galloway he was at the hospital because he was ill. (Dkt. 39-8). Plaintiff was then out of the office for two and a half hours during lunch on September 5, explaining to Galloway that he was having car trouble. (Dkt. 39-8). He missed a conference call on September 8. (Dkt. 39-8). He also missed mandatory training on September 9, again explaining to Galloway that he had car trouble. (Dkt. 39- 8). On September 10, he was absent from work, and Galloway could not reach him. (Dkt. 39-8).

         On September 9, 2014, Galloway made the decision to issue a Final Written Warning to Plaintiff based on his conduct following the Initial Warning, (Galloway Declaration, 28-2), with his absence from mandatory training being the final "nail, so to speak." (Galloway Deposition, Dkt. 39-13 at 81:10-15). Galloway informed Campbell and Defendant's Human Resources Department about her decision by September 10, 2014. (Hopkins Declaration, Dkt. 28-1: Galloway Declaration, 28-2; Campbell Declaration, 28-3).[2]On September 11, 2014, Plaintiff submitted an electronic application for FMLA leave, and began his leave that day. (Dkt. 39-4; 39-8).[3]

          He returned to work on November 3, 2014. (Dkt. 29-1 at 174). On the morning he returned, ' Galloway issued the Final Warning to him. (Dkt. 29-9). Galloway informed Plaintiff that "we essentially have to pick back up where we left off before you went out on leave .. . and being out on leave does not pause or halt anything from a performance standpoint. So due to this, we're going to issue the Final Written Warning." (Dkt, 39-13, at 62:2-6).

         While Plaintiffs overall sales quotas remained the same, the Final Warning required him to meet 100% of his sales goals each fiscal week stalling the next week, rather than each fiscal month as the Initial Warning had required. Compare (Dkt. 39-2) with (Dkt. 39-9). Plaintiff resigned after, receiving the Final Warning. (Dkt. 28-2). He claims that he was subjected to discrimination under the Americans with Disabilities Act ("ADA") and the Florida Civil Rights Act ("FCRA"), as well as retaliation and interference under the Family Medical Leave Act ("FMLA"). (Dkt. 20).

         II. STANDARD

          Summary judgment is appropriate where "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.P. 56(a). "A genuine factual dispute exists only if a reasonable fact-finder 'could find by a preponderance of the evidence that the [non-movanfj is entitled to a verdict.'" Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th, Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit under governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). All facts are viewed and all reasonable inferences are drawn in the light most favorable to the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

         The moving party bears the initial burden of showing that there are no genuine disputes of material fact. Hickson Corp. v. Northern Crossarm Co., Inc., 351 F.3d 1256, 1260 (11th Cir. 2004) (citing Celolex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once the moving party demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories, and admissions on file to designate facts showing a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. The nonmoving party's evidence "cannot consist of conclusory allegations or legal conclusions." Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). The Court will not weigh the evidence or make findings of fact. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the non-moving party. See id.

         III. DISCUSSION

         A. ADA and FCRA Discrimination

         Counts III and IV of Plaintiff s Amended Complaint assert claims under the ADA and FCRA, respectively, based on Defendant's alleged discrimination against Plaintiffs disability of anxiety and depression "by terminating Plaintiffs employment with Defendant." (Dkt. 20 at ¶¶ 46, 56), Defendant moves for summary judgment on the ground that Plaintiff cannot establish a prima facie case of discrimination because he was not qualified to perform the essential functions of his position, he has no evidence that Defendant knew of his disability, and he voluntarily resigned after receiving the Final Warning. In a brief response, Plaintiff argues that he has presented sufficient evidence to create a genuine dispute of material fact on these issues.

         "The ADA provides that no covered employer "shall discriminate against a qualified ' individual on the basis of disability in regard to . .. discharge of employees.'" Knowles v. Sheriff, 460 F.App'x 833, 834 (11th Cir. 2012) (per curiam) (quoting 42 U.S.C. § 12112(a)). ADA discrimination claims are analyzed under the McDonnell Douglas burden-shifting framework. Id. at 835 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Claims under the FRCA use the same framework as the ADA and need not be addressed separately. Id. A plaintiff establishes a prima facie case of discrimination by showing: (1) he has a disability; (2) he is qualified to perform the essential functions of the position with or without reasonable accommodation; and (3) his employer discriminated against him because of his disability. Id.

         It is axiomatic that in order for there to be a causal relationship between the employer's action and the disability, the employer must have actual knowledge of the disability. See Cordoba v. Dillard's, Inc., 419 F.M 1169, 1186 (11th Cir. 2005) ("[I]t is evident that an employee cannot be fired 'because of a disability unless the decisionmaker has actual knowledge of the disability."). "Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA." Morisky v. Broward Cnty., 80 F.3d 445, 448 (11th Cir. 1996) (per curiam) (adopting lower court's reasoning that a prospective employee's ' statements that "she could not read and had taken special education courses" were insufficient to put the employer "on notice of her developmental disorder"); see also O'Keefe v. Niagara Mohawk Power Corp., 714 F.Supp. 622, 625-26 (N.D.N.Y. 1989) (cited in Morisky, 80 F.3d at 448, for the proposition that an employer did not have actual knowledge of an employee's alcoholism disability, even though the employee's supervisors knew that he had multiple DWI convictions and had to attend court-mandated alcohol rehabilitation programs).

         Under the causation analysis explicated by the Eleventh Circuit, the employer's agent who makes the termination decision must have actual knowledge of the employee's disability in order for ' the employee to establish that the disability was a causal factor in the employer's action. Cordoba, 419 F.3d at 1175. Even when the employee's direct supervisor has knowledge of information indicating that an employee suffers from a disability, that information will not be imputed to the employer when the supervisor is not the one making the termination decision. Id. at 1174 (noting that a direct supervisor's knowledge that the plaintiff was diagnosed with a congenital heart disorder and had to occasionally leave work when suffering from an episode is not imputed to another supervisor who made the termination decision).

         Defendant concedes for purposes of summary judgment that Plaintiffs statements that he ' suffered from anxiety, depression, and alcohol dependency must be accepted as true. Defendant instead argues that "Plaintiff has no evidence that anyone was aware that he suffered from a disability, much less that his purported disabilities were the but-for cause of the adverse employment actions.” (Dkt. 28 at p. 16). Defendant's argument is well-taken under the established precedent that vague statements of physical or mental impairment are not sufficient to establish an employer's actual knowledge of a disability. See Cordoba, 419 F.3d at 1186; Morisky, 80 F.3d at 448.

         It is undisputed that by September 10, 2014 at the latest, Galloway made the decision to issue the Final Warning.[4] Accordingly, Galloway's knowledge of Plaintiff s condition on September 10, 2014 determines whether his alleged disabilities of anxiety and depression were a factor in her decision.

         Viewing the evidence in the light most favorable to Plaintiff, it indicates that by September 10, 2014, he had informed Galloway that he was dealing with "a ton of anxiety" because of his personal issues at home that made it difficult for him to perform his duties at work. (Dkt. 41 at p. 2). He admits that he was not as forthcoming with Galloway about his personal problems, including issues with alcohol, as he had been with his former supervisor, Campbell. Campbell was not, however, the decisionmaker who issued the Final Warning and therefore any information he knew about Plaintiffs condition is immaterial. (Galloway Declaration, Dkt. 28-2; Campbell Declaration, Dkt 28-3).

         Plaintiffs statements to Galloway about his anxiety relating to his problems at home are insufficient to establish knowledge on her part of an alleged disability when she decided to issue the Final Warning. Just as "it does not always follow that someone who is illiterate is necessarily suffering from a physical or mental impairment, " it does not follow that it follows from Plaintiffs anxiety about his home life that he was suffering from a mental disability. See Morisky, 80 F.3d at 448. Plaintiffs evidence, therefore, fails to create a material issue of fact as to whether his claimed disability had any role in Galloway's decision, and Defendant is therefore entitled to summary judgment on Counts III and IV.[5]

         B. FMLA

         There are two claims under the FMLA: interference and retaliation. 29 U.S.C. § 2615(a); Hurlbert v. St. Mary's Health Care Sys.,439 F.3d 1286, 1293 (11th Cir. 2006). A retaliation claim asserts that an employer discriminated against an employee for engaging in FMLA protected activity, while an interference claim asserts that an employer interfered with an employee's exercise of ...


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