Hite v. Hill Dermaceuticals, Inc., Case No. 8:12-cv-2277-T-33AEP

JOEZETTE HITE, Plaintiff, v. HILL DERMACEUTICALS, INC., Defendant.

Case No. 8:12-cv-2277-T-33AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

DONE and ORDERED: February 25, 2014

ORDER

This cause comes before the Court pursuant to Defendant Hill Dermaceuticals, Inc.'s Motion for Summary Judgment (Doc. # 27), filed on November 29, 2013. Plaintiff Joezette Hite filed a response in opposition to the Motion (Doc. # 36) on January 17, 2014. Hill Dermaceuticals filed a reply to Hite's response on January 31, 2014. (Doc. # 37). For the reasons that follow, the Motion is granted.

I. Background

In February of 2004, Hill Dermaceuticals hired Hite to work as a "dermatology sales representative." (Offer Letter Doc. # 27-1 at 1). Hite attended a multi-day orientation as a new employee with Hill Dermaceuticals, during which time Hite received training from Maria Darnell, the executive assistant to Hill Dermaceuticals' founder and president,Jerry Roth. (Hite Dep. Doc. # 31 at 4, 6; Roth Dep. Doc. # 29 at 2; Schmidt Dep. Doc. # 28 at 5). Following her orientation, Hill Dermaceuticals assigned Hite a sales territory on the west coast of Florida spanning from Brooksville to Naples. (Hite Dep. Doc. # 31 at 7-8).

Hite's work involved visiting customers, specifically dermatology physicians, to offer prescription products for the treatment of conditions such as psoriasis and eczema. (Id. at 8). According to Hite, Hill Dermaceuticals expected her to call on "about 10 to 12 physicians a day." (Id. at 7).¹ Hite primarily sold three products for Hill Dermaceuticals: (1) Derma-Smoothe Scalp, (2) Derma-Smoothe Body, and (3) DermaOtic Ear Drops. (Id. at 8). In addition to Hite's fixed salary, Hill Dermaceuticals agreed to pay Hite commissions based on the number of prescriptions written by physicians. (Id. at 5).

In Hite's original offer letter dated February 6, 2004, Hill Dermaceuticals provided general information regarding Hite's employment, including details relating to vacation leave, health insurance, and the "proprietary and secretnature of Hill's products and programs." (Offer Letter Doc. # 27-1 at 1). That letter contained the following provision: "As a Hill Sales Representative, you agree to represent the Hill product line exclusively and will never solicit business for any similar product or program of any other company and will not help or associate with any other distributor of similar products." (Id. at 2).

During her employment with Hill Dermaceuticals, Hite reported to regional sales manager Elizabeth Schmidt.² (Hite Dep. Doc. # 31 at 9; Schmidt Dep. Doc. # 28 at 11). Every week by Saturday at noon, Hite was required to fax to Schmidt a one-page weekly report containing information about her interaction with physicians in the field, including the physician's name, the date, and the location. (Schmidt Dep. Doc. # 28 at 12). At least once per year, Schmidt would ride along with Hite on her sales calls as a form of company training and review. (Hite Dep. Doc. # 31 at 9; Schmidt Dep. Doc. # 28 at 14).

On March 22, 2008, Hite gave birth to her first child, Colin. (Hite Dep. Doc. # 31 at 3). Before Colin's birth, while Hite was still pregnant and working, Hite conferred with Schmidt regarding Hite's plans to take time off after the baby was born. (Id. at 12). Schmidt never gave Hite a "time limit" on the appropriate duration for maternity leave, but expressed to Hite during the fourth or fifth week of her maternity leave that Hite was "being missed in the field," and that Hite's "numbers [were] falling as a result." (Id. at 13). Although Hite states that she never specified to Schmidt how much time she wanted to take off, Hite ultimately took "a little less than eight" weeks off from work after Colin's birth. (Id. at 12-13). During the time that Hite was away from work, she did not receive her salary, but received continued employee health care coverage as well as commissions based on the sales from her territory. (Id. at 14; Schmidt Dep. Doc. # 28 at 20).

After taking nearly eight weeks off, Hite returned to work in the same sales territory she had as of March 21, 2008. (Hite Dep. Doc. # 31 at 14). Schmidt accompanied Hite on at least one ride-along when Hite resumed her full-time employment. (Id. at 15-16). Because Hite was still breastfeeding her infant, Hite took breaks while on the roadto stop and pump breast milk in her car. (Id. at 24). While Hite did so, Schmidt would wait outside the car "on the cell phone taking calls from employees," or wait "in the lobby of one of the physicians" in order to give Hite privacy. (Id.).

During the summer of 2009, Hite learned that she was pregnant with her second child. (Id. at 23). In October of that year, Hite attended a company sales meeting in Orlando, at which Schmidt approached Hite and asked whether Hite was pregnant. (Id.). Initially, Hite denied being pregnant, but "after being questioned" by Schmidt, Hite ultimately confirmed that she was indeed pregnant. (Id. at 24). Schmidt responded by asking: "Well, did you plan this?" (Id.). Hite "told her no," that the pregnancy was not planned. (Id.).

On March 11, 2010, Hite gave birth to her second child, Evan. (Id. at 23). Before Evan was born, Hite did not discuss with Schmidt or anyone else at Hill Dermaceuticals the amount of time she wanted to take off for maternity leave. (Id. at 26). Once Hite had given birth, she informed Schmidt that she intended to take eight weeks of maternity leave - the same amount of time Hite had taken after her first pregnancy. (Id. at 48). During the fourth or fifth week of Hite's leave, Schmidt called to inform Hite of an upcoming sales meeting. (Id.). According to Hite:

[S]he called me to tell me that there was a sales meeting coming up, and that I had two options - she knows that I don't like to fly being the fact that I have a newborn - that my sales meeting was scheduled for Atlanta, but if I chose to come back early that she would pull some strings and I could go to the managers meeting which would be in Orlando.

(Id.). Hite accepted Schmidt's offer to attend the Orlando meeting in lieu of the Atlanta meeting in April of 2010. (Id. at 48-49). With the exception of attending this meeting, Hite remained on leave until May of 2010, when she resumed her duties as a full-time sales representative. (Id. at 49-50). Upon Hite's return to work, Schmidt again accompanied Hite on a ride-along, during which Schmidt praised Hite's performance in the field. (Id. at 25, 33).

On June 1, 2010, Hite signed an agreement containing reminders of the details of her employment, including information relating to the "proprietary and secret nature of Hill's products and programs." (Doc. # 27-2 at 1-2). That agreement also contained the following provision: "As a Hill sales representative, you agree to represent the Hill product line exclusively and to never solicit business for any product or service of any other company." (Id. at 2). Hill Dermaceuticals issued this document not only to Hite, but to all employees at that time. (Kaplan Dep. Doc. # 30 at 6).

On October 7-8, 2010, Hill Dermaceuticals held another company sales meeting in Orlando, which Hite and Schmidt both attended. (Hite Dep. Doc. # 31 at 30). Before the start of the meeting, Hite encountered Schmidt at breakfast. (Id.). During that encounter, Schmidt suggested to Hite that she should not leave during the meeting breaks to pump breast milk because "the last time that you left during one of the breaks you came back five minutes late." (Id.). Schmidt also said that Hite potentially could be "berated in front of all the managers" if she left the meeting too many times. (Id.).

Hite testified as follows regarding her response to Schmidt's warning:

A: . . . I said, "Regardless, I'm still going to get up." [Schmidt] said, "What's going to happen if you don't get up?" I said, " I'm going to leak all over my dress, Elizabeth." She said, "Well, it's a good thing you have long hair, cover it up." And after that you could say during the meeting my disposition was completely different than it usually is because I was extremely upset.

Q: When you say your disposition was completely different, how was your disposition?

A: I just sat there. I didn't engage in the conversations. Toward the latter part I was in pain. When you're breast feeding, and if you're not able to express the milk, everything starts balling up inside your breast and it was painful.

(Id. at 31). Despite this experience, however, Hite did not complain to "anybody else in authority at the company" about the conversation she had with Schmidt. (Id.).

At the conclusion of the October 2010 sales meeting, Schmidt expressed concern to Hite that it appeared Hite had not been paying attention during the meeting, and that Hite's eyes appeared to be "glazed over." (Id. at 32). Schmidt also commented that Hite's sales numbers had dropped. (Id.).

In early November of 2010, Schmidt and Hill Dermaceuticals' national sales manager Howard Kaplan called Hite to discuss her future with the company. (Id. at 37). Due to Hite's declining sales numbers, Schmidt and Kaplan offered Hite the choice of either (1) agreeing to a sixty-day probationary period or (2) resigning, signing a release, and receiving six weeks of severance pay. (Id.). Hite requested time to speak with her husband about these options, and Schmidt and Kaplan agreed that Hite could respond the following Monday. (Id. at 38).

After speaking with her husband, Hite decided to seek counsel. (Id.). On Monday, November 8, 2010, Hite left a message with Schmidt explaining that she was ill and would not be able to come in to work. (Id.). However, Hite admitsthat she was not really sick; she used the day off to meet with a lawyer. (Id.).

Also in early November of 2010, Kaplan discovered that, since October 5, 2010 (Hite Dep. Doc. # 31 at 56), Hite had owned a business called "Crave Nail Spa." (Kaplan Dep. Doc. # 30 at 4-5). Kaplan informed Schmidt...