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Bunting v. Blackstone Medical Services, LLC

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

February 27, 2018




         Blackstone Medical Services, LLC, employed David Bunting as a “physician sleep advisor” from June 2014 until September 2015.[1] Bunting alleges that over several months Blackstone's CEO, Vick Tipnes, a practitioner of Scientology, attempted repeatedly to proselytize Bunting, who asserts that he objected to Tipnes's proselytizing and that Blackstone terminated his employment in retaliation for Bunting's objecting.

         Bunting alleges that Blackstone violated Title VII because Tipnes “severe[ly]” and “pervasive[ly]” harassed and discriminated against Bunting based solely “on the fact that [Bunting] was not a Scientologist.” (Doc. 1 at 5) Also, Bunting alleges retaliation under Title VII, alleges religious harassment and discrimination under Florida's Civil Rights Act (“FCRA”), and alleges retaliation under Florida's Civil Rights Act. Blackstone moves (Doc. 20) for summary judgment on all counts.


         Blackstone assigned Bunting the South Hillsborough County sales area in May 2014. Nick Skijus oversaw North Hillsborough County. In February 2015 Blackstone promoted Bunting by assigning him both North and South Hillsborough County and promoted Skijus to regional sales manager. Blackstone asserts that because of Bunting's “ongoing lack of effort and poor results, ” office visits and sales numbers declined. (Doc. 20 at 11) Blackstone states that after several meetings and written “warnings” Skijus, who was Bunting's line manager, “remove[d]” Bunting as a physician sleep advisor in Hillsborough County. According to Blackstone, that decision, affirmed by Tipnes, “was [Skijus's], and [Skijus's] alone.” (Doc. 20 at 15)

         Blackstone asserts that Blackstone offered to continue paying Bunting his salary plus full commission to “help educate” and “train” Bunting's successor. (Doc. 20 at 15). But Bunting responds that Blackstone immediately “terminated” his employment on September 1, 2015; that Skijus stated he was “sorry this occurred and if it was up to [Skijus] this would not be happening”; and that at “no time during [Bunting's] employment did . . . Skijus speak with [Bunting] regarding any transition out of his role.” (Doc. 36 at 9-10) Bunting denies that Blackstone offered him a training position. (Doc. 36 at 16)

         Bunting alleges that Blackstone “removed” or “terminated” him because of his objecting to Tipnes's proselytizing for Scientology. Specifically, Bunting claims that Blackstone based mandatory training on the principles of Scientology (Doc. 36 at 3) and that Tipnes repeatedly “pestered and harassed” Bunting about Scientology (Doc. 36 at 5). Bunting states that Zach Michels and Gerald Arsenault, each a former Blackstone employee, “confirm” that Blackstone “adheres [to] and enforces the principles and beliefs of Scientology and requires Scientology-based training.” (Doc. 36 at 5) Bunting alleges that Blackstone, knowing that Bunting is a Christian, attempted to “indoctrinate” Bunting into Scientology, which the plaintiff complained about on “multiple occasions.” (Doc. 36 at 5-7) Finally, Bunting asserts that Blackstone “disciplined” and “ultimately terminated” him because Blackstone and “its management came to the realization that they failed in their attempts to recruit and indoctrinate.” (Doc. 36 at 8)

         Religious discrimination

         Under 42 U.S.C. § 2000e-2(a)(1), an employer is prohibited from “discharg[ing]” or discriminating against an employee based on religion. A plaintiff can establish a Title VII claim by direct evidence of discrimination or circumstantial evidence that permits an inference of discrimination. Hinson v. Clinch Cnty. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000).

         The burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies if a Title VII claim is circumstantial. See Brooks v. Cnty. Comm'n of Jefferson Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006). The plaintiff bears the initial burden of establishing a prima facie case of religious discrimination, which is established “by presenting evidence sufficient to prove (1) that he had a bona fide religious belief that conflicted with an employment requirement; (2) that he informed his employer of his belief; and (3) that he was discharged for failing to comply with the conflicting employment requirement.” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1322 (11th Cir. 2007). Also, because the FCRA is “modeled” after Title VII and because a claim brought under the FCRA is analyzed under the same framework, the outcome under the FCRA and Title VII is the same. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010).

         If the plaintiff establishes a prima facie case, the “burden of production” shifts to the defendant, who must articulate at least one legitimate, non-discriminatory reason for terminating the plaintiff, which eliminates the presumption of discrimination that attaches to the plaintiff's prima facie case. Watkins v. Svedrup Technology, Inc., 153 F.3d 1308, 1314 (11th Cir. 1998). But if the defendant carries the burden, “to avoid summary judgment [the plaintiff] must introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination.” Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993).

         A reason advanced by the defendant is not pretext for discrimination “unless [the plaintiff shows] both that the reason was false and that discrimination was the real reason.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). A plaintiff overcomes a defendant's asserted legitimate reason and avoids summary judgment “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Taylor v. Runyon, 175 F.3d 861, 867 (11th Cir. 1999).[2]

         Blackstone argues that a decline in office visits and Bunting's sales is a valid, non-discriminatory basis for removing Bunting from the Hillsborough County territory. Blackstone's proffered reason for removing Bunting from his role is supported by Blackstone's contemporaneous memoranda and graphs that depict the decline. Bunting admitted during his deposition that the graphs evidence the decline. (Doc. 20 at 15)

         Blackstone tracked and graphed the sales performance of both Bunting and other physician sleep advisors. (Doc. 20 at 10) Blackstone argues that Bunting never “hit the goals that he . . . set for himself.” (Doc. 20 at 10) Bunting states (1) that Blackstone's assertion that Blackstone “required” ninety visits per week is “completely false and misleading”; (2) that ninety visits “was never implemented as a requirement or a goal”; and (3) that “Skijus advised [Bunting] verbally, and in writing, that the ‘sweet spot' for number of visits was in the mid-60s.” (Doc. 36 at 9, 12-13) But Bunting (at his deposition) apparently agrees (“uh-huh”) that he previously stated that he “would do ninety office visits per week” (Doc. 20 at 10) and agrees with Blackstone's assertion that Bunting conducted fewer than ...

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