Jones v. Progressive Cas. Ins. Co.

KENTON JONES, Plaintiff, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, et al., Defendants.

No. 6:18-CV-21-REW-HAI

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON

September 24, 2019

OPINION & ORDER*** *** *** ***

A variety of protections extend to employees after on-the-job injuries. Employers must navigate such safeguards before getting an injured employee back to work. The success of the efforts comes down to effective communication between all involved parties. Crossed wires sparked this suit.

Employer and employee were never on the same page. The parties' clumsy dialogue led to a premature return to work and, ultimately, a termination. Plaintiff solely blames his former employer, now adverse litigant, for the bungling. Defendant attributes fault entirely to Plaintiff's alleged deception and shirking. As the Court sees the record, the truth lies somewhere in the middle. Defendant's team did not adequately broadcast (or even comprehend) Plaintiff's FMLA status or account for schematic protections in bringing Plaintiff back on board. But Plaintiff, whether through unintentional misstatements or willful deceit, gave Defendant ample grounds to fire him. Accordingly, the Court, at this summary judgment stage, dismisses most of Plaintiff's voluminous claim slate, but sees a record that, under the applicable standards, does not wholly absolve Defendant of liability as a matter of law.

I. BACKGROUND

On December 19, 2016, Plaintiff Kenton Jones fell while inspecting a cattle trailer for his job as a Claims Adjuster for Defendant Progressive.¹ See DE 60-9 at 14 (December 20, 2016, Jones e-mail). The tumble injured Jones's shoulder and back. See DE 60-10 at 2 (Rockcastle Cty. Regional Hosp. Records). A treating physician excused Jones from work until December 26, 2016. Id. at 5. At a December 28, 2016, follow-up, Dr. Carol McFadden (a nurse practitioner) authorized Jones, with certain restrictions, to return to work immediately. See DE 60-13 at 1 (Baptist Health Workers' Comp Form). A week later, Dr. McFadden marginally reduced these restrictions. Id. at 2. Jones had vacation anyway until January 2. See DE 60-11 (December 12, 2016, Jones e-mail).

On January 5, 2017, Progressive, on McFadden's certification, approved Jones for Family and Medical Leave Act ("FMLA") leave from December 19, 2019, to January 31, 2017. See DE 64-1 (FMLA Approval Notice). However, on several occasions in early January, Progressive employees contacted Jones regarding a return to work. On January 2, 2017, Jones's supervisor John Watson e-mailed: "I had received a notification that you would be back today? Any update you can provide?" DE 60-9 at 21. Jones advised that he was awaiting medical paperwork and that "they have taken me off work longer than expected." Id. at 20 (Jan. 2, 2017, Jones e-mail to Watson). The next day, Progressive Leave Specialist Sharon Kemp e-mailed Jones: "I just wanted to make sure that you have made it back to work." Id. at 22. On the morning of January 5, 2017, Kemp called Jonesand advised that Progressive HR Consultant Jennifer Liebler believed that the Company could accommodate Dr. McFadden's restrictions. See id. at 31 (Jan. 5, 2017, Kemp e-mail memorializing call). Jones, who typically did field not desk work, raised doubts about any accommodations given that the injury limited use of his dominant hand. Id. Kemp advised that she would reach back out to Jones after confirming with FIR and would "get him back to work as early as tomorrow." Id. Later that day, Kemp e-mailed notice that Progressive was "able to accommodate" Dr. McFadden's restrictions and that it would "expect" Jones to return to normal working hours the next morning. Id. at 33 (e-mail). Jones did not (at that time) receive Kemp's afternoon message. See DE 64-20 (Jones's recording of Jan. 17, 2017, call) at 02:30 (Jones denying receiving Progressive communications on the afternoon of Jan. 5, 2017).

On Friday, January 6, 2017, Liebler called Jones to confirm the Company accommodations and relayed Progressive's expectation that Jones return in a light-duty role on Monday, January 9. DE 64 (Pl.'s Resp.) at 4; DE 60-9 at 39 (Jan. 6, 2017, Liebler e-mail memorializing call). Jones advised Liebler that he was unable to return on January 9, 2017, because of an intervening personal trip to Arizona. DE 64 at 4. Thus, Liebler (seeded with doubt) advised that Progressive would expect Jones back on January 11. Id. Liebler quietly began a probe that day. See DE 60-9 at 2 (Liebler notes).

When Jones returned on January 11 for light duty, his supervisor (Watson) sent him eleven requirements for the modified role. DE 64-15 (Watson e-mail to Jones: "Light Duty Assignment Requirements / Expectations"). Progressive's daily expectations included, as relevant here, that Jones: (1) e-mail Watson each day at 8:30 to confirm he was at work, (2) complete a spreadsheet tracking "each claim" Jones worked on, and (3)send Watson the updated spreadsheet each day by 5:15. DE 64-15. The same day, Liebler, Watson, and (Watson's supervisor) Christopher Leissner interviewed Jones about certain perceived discrepancies in Jones's Arizona trip explanation and the resulting delay in his return to work. DE 60-9 at 7 (Liebler notes). Though Leissner and Watson later corroborated much of Liebler's narrative, Jones disputes many statements that Liebler's January 11 notes attribute to him.

Progressive worried that Jones had deceptively avoided a work return. The Company perceived that Jones actively misled it with respect to his work release status. Further, Jones planned a private Arizona trip—thus intending to be away—while the Company worked to bring him back into the office. Jones either did not promptly disclose the trip or was dodgy on the details and sequence. Jones knew Kemp was confirming the Progressive accommodations for him on January 5, with intent that he return to work on January 6. Despite that, he said nothing to Kemp about going to Arizona. Further, on January 6, Jones gave the impression, a misdirecting one, that he was in or en route to Arizona. His plane did not depart Kentucky until hours after his conversation with Liebler on January 6 (and he arrived in Cincinnati the night before the Liebler call).

Liebler investigated based on her recollection of the January 11 call. Jones provided his January 4, 2017, booking information for a 2:26 p.m., January 6, 2017, flight from Cincinnati, Ohio, to Phoenix, Arizona. DE 60-9 at 53 (Jan. 13, 2017, Jones e-mail to Liebler); id. at 55 (image reflecting itinerary). On January 17, 2017, the same Progressive team conducted a second phone interview, which Jones secretly recorded. See DE 64-20 (Jones's recording). On the call, Liebler focused primarily on perceivedJones lies regarding his ticket purchase and Arizona departure dates. Id. Jones maintained, throughout, that he did not lie and suggested that any discrepancies were simply a result of misremembering, unintentional misstatements, or because he was "caught off guard." See, e.g., id. at 16:35 & 18:00. Progressive, unpersuaded, ultimately terminated Jones for lack of integrity during the January 17 call. Id. at 16:00. Jones vowed to sue.

Based on these events and certain subsequent Progressive conduct,² Jones seeks recovery under thirteen separate theories. See DE 25 at 4-11 (Amended Complaint). He alleges: FMLA interference (Count I); FMLA retaliation (Count II); intentional (Count III) and negligent (Count IV) infliction of emotional distress; negligence/vicarious liability (Count V); breach of contract (Count VI); conversion (Count VII); a KRS 337.385 wage violation (Count VIII); Kentucky workers' compensation retaliation (Count IX); interference with contract (Count X); wrongful use of administrative proceedings (Count XI); negligence per se (Count XII); and punitive damages (Count XIII). Id. Progressive pursues summary judgment on each claim. DE 60 (Motion). The motion is fully briefed and ripe for review. DE 64 & 69 (Response & Reply).

II. STANDARD

A court "shall grant summary judgment if the movant shows that 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 reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).

The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[] those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 F.3d at 414 ("The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Corp., 106. S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, "Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 106 S. Ct. at 2552; see also id. at 2557 (Brennan, J., dissenting) ("If the burden of persuasion at trial would be on the non-moving pa...