Brown v. Lassiter-Ware, Inc.

L. RONALD BROWN, Plaintiff,

v.LASSITER-WARE, INC., Defendant.

Case No: 6:11-cv-1074-Orl-36DAB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

DONE and ORDERED: August 16, 2013

ORDER

This cause comes before the Court on Defendant Lassiter-Ware, Inc.'s. ("Defendant" or "LWI") Motion for Summary Judgment (Doc. 46). Plaintiff L. Ronald Brown ("Plaintiff") filed a response in opposition to LWI's Motion for Summary Judgment ("Response") (Doc. 52), to which LWI replied (Doc. 62). Upon consideration of the parties' submissions, including memoranda and accompanying exhibits, and for the reasons that follow, LWI's Motion for Summary Judgment will be granted in part and denied in part.

I. BACKGROUND

A. Statement of Facts¹

1. Plaintiff's Employment

LWI is a full-service independent insurance agency. Doc. 60, ¶ 1. On February 20, 2003, Plaintiff was hired by LWI to work in its Maitland, Florida branch office as a sales person in the Property and Casualty Division. Id. at ¶¶ 3, 6; McClain Aff., Doc. 41, ¶ 2. Plaintiff, whose date of birth is March 5, 1951, was 51 years old when he was hired by LWI. Id. at ¶ 4.

When Plaintiff applied for his position with LWI, he indicated that he was seeking full-time employment. Brown Dep., Doc. 49-1, 37:9-14. Christopher McClain, an employee at LWI, recommended to the management team, Ted Ostrander and John Hahne, that LWI hire Plaintiff. McClain Aff., Doc. 41, ¶ 2. Thereafter, McClain notified Plaintiff that the company had made the decision to offer him a position. Brown Dep., Doc. 49-1, 38:13-21. Plaintiff understood that this would be a full-time position. Id. at 38:22-24. At the time Plaintiff was hired, he signed an acknowledgment of LWI's Anti-Discrimination/Harassment policy, which included the procedure for initiating complaints of discrimination or harassment. Id. at 39:15-40:18; Doc. 49-3, pp. 8-10; Doc. 60, ¶ 7. Plaintiff acknowledged that he also received a copy of LWI's Family and Medical Leave Act ("FMLA") Policy. Brown Dep., Doc. 49-1, 41:11-42:3; Doc. 44, p. 11; Doc. 60, ¶ 8;.

McClain was Plaintiff's immediate supervisor. Doc. 60, ¶ 9. Plaintiff testified that, for the first five years of his employment, he and McClain "worked very well together." Brown Dep., Doc. 49-1, 47:19-48:3. Plaintiff exceeded LWI's annual new business sales goals in the fiscal years ending April 30, 2004 and April 30, 2006. See Doc. 49-3, p. 65. Plaintiff testified that he twice received LWI's "Circle of Excellence" award, which is awarded based upon annual sales performance. Brown Aff., Doc. 53-1, ¶ 5. Plaintiff also testified that he was rewarded with trips by LWI and its clients for his high level of production. Id. at ¶¶ 5-6.

However, Plaintiff felt that his relationship with McClain changed when McClain was promoted to vice president of sales in 2008. Brown Dep., Doc. 49-1, 48:4-10, 49:16-18. Once promoted, McClain began requiring employees to submit more reports and attend more frequent and longer sales meetings, and he became more involved with the sales force. Id. at 48:11-49:21. Plaintiff felt these changes were unfair because he was on straight commission andshould have been allowed to manage himself. Id. at 52:13-21. However, Plaintiff did not feel at any time that the sales goals placed on him were unfair. Id. at 57:5-25. Plaintiff also testified that his relationship with McClain became "very strained" because prior to McClain's promotion, the pair had socialized publicly and were friendly, but now it was just "strictly business." Id. at 49:22-50:15.

By the end of 2008, the general insurance market began collapsing together with the rest of the economy, and LWI's revenues dropped "precipitously." Ostrander Dep., Doc. 37, 22:17-21. At that time, LWI's management and board of directors began discussing the possibility of layoffs. Id. at 22:22-23:6.

2. Plaintiff's Illness

Plaintiff testified that in January or February of 2009, he began experiencing headaches, flu-like symptoms, dizziness, and weakness "to the point of almost passing out." Brown Dep., Doc. 49-1, 76:1-7, 93:1-94:5. In February 2009, Plaintiff told McClain that he was experiencing severe fatigue. Id. at 77:14-78:5. McClain told him to go to the doctor. Id. at 78:6-8.

Plaintiff visited Lydia Marsham, a physician's assistant, who diagnosed him with Epstein-Barr virus. Dube Dep., Doc. 61-1, 29:1-30:3. On March 25, 2009, Marsham wrote a doctor's note stating that Plaintiff was being treated and should remain off work from April 1, 2009, through May 1, 2009. Id. at 47:1-10; see Doc. 49-3, p. 18. Plaintiff presented the note to McClain. Doc. 60, ¶ 14. According to Plaintiff, McClain responded by telling him to "take a couple of weeks and then come back to work, that [Plaintiff] could not afford to take off an entire month, [he would] lose [his] job." Brown Dep., Doc. 49-1, 75:2-9. Plaintiff testified that McClain told him that if there was a recurrence of his symptoms, he should "just push through it." Id. at 75:20-76:16. McClain disputes this, testifying that he encouraged Plaintiff to take the time necessary to get better. McClain Aff., Doc. 41, ¶ 8. McClain denies that his remarks toPlaintiff about "push[ing] through" were directed toward Plaintiff's medical condition, explaining that the remarks were part of a larger, ongoing conversation with Plaintiff about producing at a higher level:

[M]y conversations with Mr. Brown about pushing through, working harder, being more focused, trying to attain higher sales has been an ongoing conversation that included the term push through it, let's get out there and make this happen, let's be aggressive, Ron, don't sit back. This is not—this is not football. We don't get—it's not defense; you don't get to sit on the bench.

Ron Brown was a football player at the University of West Virginia. He and I talked about these things all the time. Ron, this is 42-7. You don't—you don't get to sit on the bench while the rest of the team is out there and you're resting. You got to play all the time here.

And this was conversations to Ron on an ongoing basis—not specific to this, by any means—that, that he needed to continue to work harder because he wasn't making his sales goals. That was my job. I do that with every single producer we have.

So selectively singling out that one comment for this particular time is selective, selective memory. He—we talked about this on an ongoing basis, so, yes, that term ["push through"] was used.

...

I indicated to Mr. Brown that leaving the sales production in a down cycle when his sales were not up, anywhere close to being—hitting his sales goal was indeed a bad time for any producer.

And it wasn't necessarily Ron Brown. I'm talking about producers in general—as a general animal; the producer can't pull out for a month when they're not hitting their sales goals.

McClain Dep., Doc. 39, 111:12-113:1.

McClain forwarded the doctor's note to E. Scott Bowers, LWI's Director of Human Resources, via email on March 26, 2009. Doc. 60, ¶¶ 13, 15; see Doc. 41, p. 8. The email contained the following message:

Scott, I would like your thoughts on this. Ron is very ill and has been having a very difficult time working through the week and I think this time off could be useful but my concern is will it solve the problem as his doctor can not be surehow long this will last. Ron is very concerned to be out this length of time because he will surely loose him [sic] momentum and not make his sales goals. He has been fighting this for the past 3 months and is willing to keep trying to work. Have you seen this before and how was it handled or do you have any thoughts.

Doc. 41, p. 8.

On April 14, 2009, Bowers sent to Plaintiff, via regular mail, a letter indicating that LWI had been made aware of the possibility that Plaintiff may qualify for FMLA leave. Bowers Dep., Doc. 34, 30:8-34:3; see Doc. 40, p. 7. Also included in the mailing were LWI's FMLA policy and the Government-mandated forms, including a Notice of Eligibility and Rights & Responsibilities which indicated that Plaintiff was deemed eligible for FMLA leave beginning April 1, 2009, and that he was entitled to up to twelve weeks of unpaid leave. Bowers Dep., Doc. 34, 30:11-15; see Doc. 40, pp. 7-14. Plaintiff testified that he never received the mailing. Brown Dep., Doc. 49-1, 84:17-85:7.

After taking two weeks off, Plaintiff returned to work on April 13, 2009. Id. at 78:13-80:7. Shortly after his return to work, Plaintiff had a phone conversation with Bowers in which he told Bowers that he was not taking a full month of FMLA leave because he was scared he would lose his job. Id. at 84:1-10. Bowers told Plaintiff that he had to have a doctor's note stating that he could return to work, because he had only taken off two weeks rather than Marsham's recommendation of one month. Id. at 81:8-82:8. Plaintiff obtained a note from Suzan Weis, a nurse practitioner, dated April 20, 2009, which stated that he could return to work as of April 13, 2009. Id. at 78:18-79:16; see Doc. 49-3, p. 31. Plaintiff presented the note to Bowers and resumed working. See Bowers Aff., Doc. 40, ¶ 8.

Plaintiff testified that, beginning with the onset of his illness in early 2009, he had difficulty "keeping up" with the increased reports and meetings required by McClain. Brown Dep., Doc. 49-1, 54:17-55:14. Plaintiff further testified that, from February 2009 through theend of his employment, he was no longer working five days a week, nor was he working 40 to 50 hours a week. Id. at 70:10-71:25. Some days, he would go home for lunch, fall asleep, and not report back to work until the next day. Id. at 70:11-14.

McClain and Denise Donelson, a business account manager in LWI's Maitland office, testified that Plaintiff had actually been working reduced hours since 2006 or 2007, before the onset of his illness. See McClain Aff., Doc. 41, ¶ 6; Donelson Dep., Doc. 35, 17:10-22, 58:21-62:11. According to them, Plaintiff would normally arrive at...