Caudle v. Nielsen Co. (US), Case No. 17-13737

DAVID CAUDLE, Plaintiff, v. THE NIELSEN COMPANY (US), LLC, Defendant.

Case No. 17-13737

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 31, 2020

HON. MARK A. GOLDSMITH

OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Dkt. 36)

Defendant The Nielsen Company ("Nielsen") has filed a motion for summary judgment on Plaintiff David Caudle's nine-count complaint. Nielsen Am. Mot. for Summ. J. (Dkt. 36). In the complaint, Caudle alleged that he experienced harassment, discrimination, retaliation, and intentional infliction of emotional distress while working at, and being discharged from, Nielsen. Am. Compl. (Dkt. 10). Several of these counts have been conceded or lack sufficient basis in law or fact. However, Caudle has presented sufficient evidence to create a genuine dispute of material fact on his claims of disability discrimination and retaliation for use of leave guaranteed by the Family and Medical Leave Act ("FMLA"). Therefore, Nielsen's motion is granted in part and denied in part.¹

I. BACKGROUND

A. Caudle's History at Nielsen

Nielsen hired Caudle as a field representative in May 2012. Statement of Additional Material Facts ¶ 1 ("SAMF") (Dkt. 43); Caudle Dep., Ex. A to Resp., at 56 (Dkt. 43-1). He serviced "Nielsen homes," which are homes in which Nielsen installs equipment and software to monitor consumers' viewing habits on televisions and other viewing devices. Am. Mot. at 1; Statement of Facts ¶¶ 1, 8-10 ("SOF") (Dkt. 36). The data collected from homes in Nielsen's samples produce the Nielsen ratings, which are sold to producers of television content and advertisers. Am. Mot. at 1.

Caudle claims that he had a "near perfect work record" and won Field Representative of the Month awards, although he received a "write-up" in the form of a Performance Improvement Plan ("PIP") in July 2014. SAMF ¶ 1; see also July 2014 PIP, Ex. 10 to Am. Mot. (Dkt. 36-11). The PIP highlighted Caudle's failure to resolve data and equipment errors concerning his Nielsen homes, a discrepancy in the reported gender of two members of a household, and a low rate of "metering" personal computers (installing Nielsen software to track computer use). July 2014 PIP; SOF ¶¶ 11-14. Caudle, an African-American man, has alleged that the imposition of the PIP was racially discriminatory, and he testified that other field representatives had made similar mistakes without receiving a PIP or discipline. SAMF ¶ 1; Caudle Dep. at 100-107, 151-160. He testified that other employees laughed when asked if they had ever heard of someone being disciplined for having a low personal computer enrollment percentage. SAMF ¶¶ 12-13; Caudle Dep. at 106. At year-end evaluations, Caudle scored a 3.0 (meets expectations) for his 2012 and 2013 performances, a 2.0 (partially meets expectations) for 2014, and a 3.0 (meets expectations) for 2015. 2012 Nielsen Performance Evaluations, Ex. 8 to Am. Mot. (Dkt. 36-9); 2013 Nielsen Performance Evaluations, Ex. 9 to Am. Mot. (Dkt. 36-10); 2014 Nielsen Performance Evaluations,Ex. 11 to Am. Mot. (Dkt. 36-12); 2015 Nielsen Performance Evaluations, Ex. 12 to Am. Mot. (Dkt. 36-13).

Caudle has sickle cell anemia and has taken several leaves of absence from Nielsen due to the restrictions the disease places on his ability to work and the need to receive treatment. SAMF ¶¶ 4-5. Caudle could not remember precisely how many leaves of absence he took related to sickle cell anemia. Caudle Dep. at 132-133.

The record also reflects two leaves of absence for injuries unrelated to sickle cell. In November 2014, he experienced a back injury while on the job, for which he received workers' compensation. Caudle Dep. at 159-162. He was on leave until January 13, 2015. Id. When Caudle returned from this injury, Field Supervisor Ryan Dinsmore, created a "light duty" position for the approximately two weeks Caudle worked under restrictions. Id. at 163. Caudle also took a leave of absence sometime around May 2016 related to an arm injury that he claims stemmed from an on-the-job injury, for which he did not received workers' compensation. Id. at 177-184.²

Caudle went out on leave related to sickle cell anemia on August 8. Id. at 182. He appears not to have returned until October 6, 2016, when he was suspended pending an investigation that resulted in his termination. Id. at 182-184; SAMF ¶ 5.

Caudle was terminated on October 12, 2016. Termination Letter, Ex. 20 to Am. Mot. (Dkt. 36-21). On and after October 12, 2016, Caudle contacted individuals at Nielsen, in part to ask how Nielsen handled harassment claims. See Investigation Summary, Ex. 21 to Am. Mot., at 2 (Dkt. 36-22); October 2016 Email Thread (Caudle and Fantarella), Ex. 22 to Am. Mot (Dkt. 36-23). Denise Fantarella, a human resources manager, investigated Caudle's allegations of discrimination. See Investigation Summary; October 2016 Email Thread (Caudle and Fantarella).Apparently, her investigation consisted largely of a conversation with Dinsmore and reached the conclusion that no discrimination occurred. Fantarella Dep., Ex. G to Resp., at 15-16 (Dkt. 43-7).

Caudle filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 24, 2016, alleging retaliation and discrimination based on race and disability between October 7, 2016, and October 12, 2016. EEOC Charge, Ex. 31 to Reply (Dkt. 46-5). The EEOC closed its file and informed Caudle of his right to sue on August 18, 2017. EEOC Dismissal and Notice of Rights, Ex. 23 to Am. Mot. (Dkt. 36-24).

B. Nielsen's Purported Basis for Termination

The parties present competing narratives of the circumstances leading up to Caudle's termination. In Nielsen's version of events, its employees discovered numerous errors while servicing the homes Caudle usually serviced. See SOF ¶¶ 19-23.³

Household #1

On September 6, 2016, two Nielsen employees visited a house and reported finding a messy "prepack" of equipment. 9/7/2016 Emails, Ex. 15 to Am. Mot., at 3 (Dkt. 36-16). Caudle explained that he left the prepack there intentionally because the household was expecting a new television when a new person moved into the household. Caudle Dep. at 213-214. He attributed the mess to the fact that the room was being painted and that a new resident was moving in. Id.

Household #2

In a second incident, an employee named Dave Shock serviced Household #2 on August 19, 2016, after the household's cable service was shut off. 9/27/16 Email, Ex. 17 to Am. Mot.(Dkt. 36-18).⁴ The household member told Shock, and later Dinsmore, that she had a television in her bedroom in addition to the metered television in her main room. Id. This contradicted Caudle's report that she only had one television. Id. The household member said that Caudle had attempted to fix equipment on her television but had been unable to, so Caudle instructed her not to use that television. Id. Dinsmore's email also noted a discrepancy in the records of how many times Caudle had visited the home in July 2016. Id.⁵

Household #3

In reference to a third home, Dinsmore reported that Shock told him that he visited one of Caudle's homes and learned that the household had six televisions, only two of which were metered and known to Nielsen. September-October 2016 Email Thread, Ex. 18 to Am. Mot. (Dkt. 36-19); Investigation Summary. Caudle testified that he did not know about these televisions, that he had not been granted access to the areas where the unmetered televisions were located, and that residents of Nielsen homes frequently lie about the number of televisions they have. Caudle Dep. at 240-244. Caudle also named Nielsen employees who had not been terminated for similar incidents. Id. at 245.

Household #4

The final incident cited as a cause for termination involved a Nielsen home that employee Brian Molner covered for Caudle. See SOF ¶ 22; Investigation Summary at 2-3; Nielsen Complaint Email Thread, Ex. 19 to Am. Mot. (Dkt. 36-20). The Nielsen family reported that it began receiving harassing calls and texts from Molner when Caudle was out on sick leave. Id. at 2. They reported calling Caudle to confirm Molner's contention that Caudle had sent Molner to cover for him. Id. Caudle testified that he told the family that Molner was a representative from out of town who was covering his field area, but that he did not know him. Caudle Dep. at 184-192. Upon learning this information, the household member found that it was "very clear" Molner lied when he told the family that Caudle had personally sent him to service the house. Nielsen Complaint Email Thread at 2.

The household complained about the incident to Nielsen and filed a Better Business Bureau Report. Id. According to Nielsen, the household was pulled from the sample of Nielsen homes early and paid $425. Investigations Summary at 3. Caudle said that Molner asked the family whether Caudle had ever lied to the family and whether the family had any unmetered televisions. Caudle Dep. at 186. The household member largely confirmed Caudle's allegations that Molner encouraged or pressured the family to offer evidence of wrongdoing by Caudle. The household member wrote, "[Molner] attempted to bribe me with Visa gift cards to gain access to my home. Brian [Molner] also began asking insulting questions, like if Dave [Caudle] had ever offered us money or if Dave had ever asked us if we had any televisions we didn't want metered." Nielsen Complaint Email Thread at 3.

C. Caudle's Allegations of Discrimination

Caudle alleges that he was fired because of his disability and as retaliation for exercising his rights under the FMLA, the Elliot-Larsen Civil Rights Act ("ELCRA"); Title VII of the Civil Rights Act of 1964 ("Title VII"), Michigan's Persons with Disabilities Civil Rights Act("PWDCRA"), and the Americans with Disabilities Act ("ADA"). He also alleges a history of discriminatory treatment at Nielsen based on his race and disability.

Caudle's...