Juback v. Michaels Stores, Inc.

143 F.Supp.3d 1195

Timothy R. Juback, Plaintiff,

v.Michaels Stores, Inc., Defendant.

Case No. 8:14-cv-00913-T-27EAJ

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

Signed November 9, 2015

Filed November 10, 2015

Gerard Joseph Curley, Keith E. Sonderling, Gunster, Yoakley & Stewart, PA, West Palm Beach, FL, Mark James Ragusa, Gunster, Yoakley & Stewart, PA, Tampa, FL, for Plaintiff.

Richard C. McCrea, Jr., Catherine H. Molloy, Greenberg Traurig, P.A., Tampa, FL, for Defendant.

ORDER

JAMES D. WHITTEMORE, United States District Judge

BEFORE THE COURT are Defendant's Motion for Final Summary Judgment (Dkt. 62) and Plaintiff's Motion for Partial Summary Judgment on Counts III, VII, and VIII (Dkt. 63). Each party responded in opposition to the other's motion (Dkts. 87, 88). Upon consideration, Defendant's motion is GRANTED in part. Plaintiff's motion is DENIED. Defendant's motion is DENIED as to Plaintiff's claims for unpaid reimbursements, but Plaintiff is ORDERED TO SHOW CAUSE why those claims should not be dismissed for lack of federal subject-matter jurisdiction.

The undisputed facts demonstrate that Defendant terminated Plaintiff for a legitimate, non-discriminatory reason, Defendant did not coerce Plaintiff into not filing a workers' compensation claim, did not interfere with Plaintiff's FMLA rights, and did not discriminate against Plaintiff on the basis of disability.

I. BACKGROUND

Plaintiff Timothy R. Juback worked for Defendant Michaels Stores, Inc. as a Zone Loss Prevention and Safety Manager ("ZLPM") from September 2008 until October 2013. (Juback Dep., Dkt. 64 at 50). Juback's responsibilities included directing the loss prevention and safety efforts of stores in his assigned zone. (Dkt. 64–4). He regularly visited those stores, traveling by car and plane, to oversee their loss prevention and safety programs, train employees, and conduct store audits. (Id. ; Juback Dep., Dkt. 64 at 75). From the time he was hired until early 2013, Juback's supervisor was Loren Van Roekel, the Director of Store Loss Prevention. (Roberts Dep., Dkt. 75 at 18:2-3). Juback received generally positive evaluations under Van Roekel, including the highest possible rating in his mid-year evaluation in March 2013. (Dkt. 67–5 at p. 9). However, Van Roekel did note problems with Juback's expense reporting and time management. (Dkt. 67–1 at p. 5; Dkt. 67–2 at pp. 5-6; Dkt. 67–3 at p. 6).

John Roberts became Director of Field Loss Prevention and Juback's supervisor in April 2013. (Roberts Dep., Dkt. 75 at 10:16-24). Roberts soon became concerned about Juback's requests for reimbursement of business expenses. On May 24, 2013, Roberts emailed Shawn Gingrich, in Michaels' human resources department, telling him, "I'd like to discuss [Juback's] behavioral trends with you sometime when you have a few minutes." (Dkt. 77–23). On June 3, 2013, Roberts asked for, and received, Juback's expenses for the previous twelve months. (Dkt. 77–26). After reviewing the expenses, Roberts concluded that Juback was improperly claiming business expenses and discussed his concerns with Amanda Gray in Michaels' human resources department and Vice President of Loss Prevention Dan Meyer. (Dkt. 73–2).

On June 19, 2013, Roberts issued, and Juback signed,¹ a "Final Warning" disciplining Juback for violations of "Expense Management" and "Failure to follow company programs." (Dkt. 64–13). The warning stated that Juback had "submitted expenses for items outside of Michaels Travel Policy and did not follow company expense reimbursement policy," and listed as examples of ineligible expenses in the action plan "meals in hometown, after travel has concluded" and "[b]ottled water." (Id. ) The warning stated that "detailed receipts" must be submitted with expense reports. (Id. ) Juback was directed to reimburse Michaels for a family meal expense on May 17, 2013 and bottled water. The warning concluded that "[f]ailure to improve and sustain performance at any acceptable level may result in further disciplinary action up to and including termination." (Id. )

Meanwhile, Roberts became concerned about Juback's involvement in outside business activities, particularly with regard to a nutritional supplement, Zija, which Juback sold while a full-time employee with Michaels. Juback began selling Zija in January 2012. (Juback Dep., Dkt. 64 at 30:24).² As an "independent distributor" of Zija, Juback received a commission based on his sales of Zija. (Juback Dep., Dkt. 64 at 26:13-14, 26:21-23, 27:13-28:25). Juback recruited others, including fellow Michaels employees, into his "tree" to sell Zija and received a portion of the commissions they earned. (Id. at 31:3-25; Lutz Dep., Dkt. 81 at 66:3-68:10).

Roberts first expressed concerns about Zija to Juback in June 2013. Juback responded that it was a hobby that did not interfere with his work. (Roberts Dep., Dkt. 75 at 84:23-85:3). However, on August 16, 2013, Roberts received an email from Shawn Gingrich, telling him that two District Managers had complained that Juback was sending text messages advertising Zija during company time. (Dkt. 77–5; Gingrich Dep., Dkt. 80–1 at 27:20-36:20). Gingrich wrote that the managers were "the same ones that called me before and they are getting very frustrated and want it to stop." (Dkt. 77–5). Jeffrey Wallace, a District Manager, testified that Juback frequently sent him text messages promoting Zija during work hours. (Wallace Dep., Dkt. 84–1 at 40-42). Amanda Gray testified that there were additional complaints from Michaels employees about Juback's promotion of Zija, and that some managers believed Juback evaluated them based on their receptiveness to buying and selling Zija. (Gray Dep., Dkt. 71 at 93:5-94:24).³

Roberts called Juback on August 30, 2013, while Juback was on vacation, and told him he had spent the day with other company executives discussing Juback's sale and promotion of Zija. (Juback Dep., Dkt. 64 at 100:1-102:18). Roberts told Juback that he would contact him again on September 5, when Juback returned from vacation, to notify him whether Michaels had decided to issue another written warning or terminate him. (Id. ) Working with human resources, Roberts decided to issue another written warning, because the previous warning did not list Zija as a concern. (Roberts Dep., Dkt. 75 at 58:5-19).

The day the conversation between Roberts and Juback was scheduled to occur, Juback was injured while on the job at a Michaels store in Brandon, Florida. He reported the injury to Roberts and Liz Morales in human resources by email that day, stating his intention to file a workers' compensation claim. (Dkt. 75–5). Juback also notified Roberts and Morales of a prior injury he suffered on February 11, 2013 at a Michaels store in Tampa. (Id. )

The February injury occurred in the presence of District Manager Dave Ticich and Loss Prevention Agent Justin Lutz. (Lutz Dep., Dkt. 81 at 28:25-29:18). After the February injury, Juback exclaimed "ouch" or "that hurt." (Id. ) Ticich told Juback he "better not report that to Workers' Comp." (Id. at 29:12-30:12, Juback Dep., Dkt. 64 at 186:5-9). Neither Juback nor Ticich reported the February injury at the time of the incident. (Dkt. 64–5).

After receiving Juback's September 5 email reporting both injuries and requesting workers' compensation, Roberts forwarded it to Dan Meyer. Meyer replied, "[N]ote company policy for reporting [workers' compensation] accidents, he needs to be an example in following our processes instead of not reporting an injury for many weeks." (Dkt. 74–7).

The next day, September 6, 2013, Juback saw a doctor for treatment. (Dkt. 75–12). The doctor instructed Juback not to travel by plane or car for distances longer than 50 miles. (Dkt. 75–7 at p. 4). While Juback was at the doctor's office, Roberts sent him a electronic invitation for the discussion regarding Zija and texted Juback to ensure he received the invitation. (Dkt. 75–12). Juback responded that he received it, and wrote, "I'm still at the doctors office. This is taking forever, I haven't even been seen yet and I'm in pain :-(." (Id. ) Roberts replied, "Sorry to hear that. Hope you feel better soon. Are you at the doctor in Tampa?" (Id. ) Juback texted back, "Yes. Where did you think I was?" (Id. ) Roberts replied, "I'm not in the office so I can't see your calendar. Wasn't sure if you were traveling today." (Id. ) Juback responded, "I see." (Id. ) Juback and Roberts exchanged further texts about Juback's condition and his diagnosis. (Id. )

Later that afternoon, Roberts emailed Juback the draft written warning regarding Juback's sale and promotion of Zija and called him to discuss it. (Juback Dep., Dkt. 64 at 112:4-114:22; Dkt. 64–17). According to Juback, Roberts was "upset and started yelling" at him during the call, because Juback disagreed with the written warning. (Id. ) Roberts insisted that Juback quickly read the document while Roberts was on the telephone, counting down two minutes for him to read it. (Id. ) Juback testified that Roberts told him "to shut up or I'm going to fire you now," and when Juback's wife began speaking in the background, Roberts said, "tell her to shut up or... I'm going to shut her up." (Id. )⁴ Juback then told Roberts he was taking pain medication, which led both to conclude that the conversation was inappropriate, and Roberts ended the conversation. (Id. ; Roberts Dep., Dkt. 75 at 76:14-77:6).

After the call, Roberts wrote to Gray, Meyer, and Jill Marlowe in human resources that Juback had been "very argumentative" during the call and disagreed with the written warning. (Dkt. 72–10). Roberts stated he would continue investigating Juback. (Id. ) He conducted a Google search of Juback's name and asked another Michaels employee to review security camera footage in an attempt to view Juback's injury. (Dkt. 77–4). Roberts discovered that Juback had recently incorporated a company called LPS Consulting, which focused on risk management and background...