Bartels v. Southern Motors of Savannah, Inc., No. 4:2014cv00075 - Document 67 (S.D. Ga. 2016)
Court Description: ORDER granting 40 Motion for Summary Judgment; denying as moot 30 Motion to Compel; denying as moot 28 Motion for Protective Order. The Clerk is directed to enter judgment in favor of Defendant 402 East Broughton Street, Inc., and is further directed to terminate all motions and deadlines and close this case. Signed by Judge J. Randal Hall on 03/28/2016. (thb)
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Bartels v. Southern Motors of Savannah, Inc. Doc. 67 IN THE UNITED FOR THE STATES DISTRICT SOUTHERN DISTRICT OF COURT GEORGIA SAVANNAH DIVISION DUANE BARTELS, * • Plaintiff, * v. * 4 02 EAST BROUGHTON STREET, CV 414-075 INC.,* d/b/a SOUTHERN MOTORS ACURA, * Defendant. * ORDER Presently before summary judgment (Doc. the Court 40). is Defendant's For the reasons below, motion for Defendant's motion is GRANTED. I, The present with Defendant, dispute BACKGROUND arises f 2.) Defendant After since Court interfered Leave Act Plaintiff 2004, October 23, 2012. this of Plaintiff's employment the owner and operator of Southern Motors Acura, a car dealership in Savannah, 1, out Georgia. worked Defendant (Bartels Decl., in various terminated his Doc. 56- capacities for employment on In response, Plaintiff filed a complaint with on April with his ("FMLA"), 14, right 2014, to 29 U.S.C. alleging leave that under the Defendant Family had Medical § 2601 et seq. , and had retaliated against him for exercising this right. (Doc. 1.) The facts Dockets.Justia.com underlying Plaintiff's favorable to him, claims, viewed in the light most are as follows. Originally hired by Defendant in 2004 as a wholesale parts salesman, parts Plaintiff was promoted to service manager and service director late 2011. manager, before becoming Defendant's 56-15, two sons, Adam and Ross. at 23-24; Adam Dep., Doc. contributions January 2012 sixteen at to 56-17, (Adam Dep., over Acura 2011. 56-17, on he had units for following text message: 2, Doc. Plaintiff, The Adam Dep., 2012, exceeded the months from had sold 56-16, Ex. on multiple the Kaminskys. Adam sent Plaintiff the following at 152; July the Defendant (Myron Dep., reinforcement 2 012, at 51.) During than "Great job this month. Doc. that vehicles positive on July 1, Then, sixty in (Myron Dep., Plaintiff oversaw the sale For his performance, received text message: statement new 18-25.) For example, 6.) As general Plaintiff made positive business. through September 2012, same months occasions, at Defendant's more during the 71-72, in Plaintiff reported to three of Defendant's six owners, In his capacity as general manager, of manager (Bartels Dep. I, Doc. 56-6, at 19, 44.) Myron Kaminsky and his Doc. general in his quarter, xxOk cool. report Doc. response sales goals Ross sent Good job." looks 56-18, to and good!!" Ex. 62, Plaintiff's had moved Plaintiff the (Bartels Dep. II, Doc. 56-8, at 50-51; Bartels Dep. II, Doc. 56-11, Ex. 11, at 9- 10.) On October 12, attended a doctor's (Bartels Dep. Plaintiff than 2012, I, appointment Doc. 56-6, learned that five percent well into his new position, at heavily his 54-55.) the.bones and with of his At pregnant that wife. appointment, unborn child were curved." walked outside of the hospital, Plaintiff (Id. at 55.) "less As he Plaintiff called Myron to inform him of this information and to relay that he would be attending a perinatologist appointment with his wife later that day. at 54-56.) Myron replied by telling Plaintiff to stay in touch and keep him informed. a voicemail results, (Id. the next (Id.) day, Accordingly, October 13, Plaintiff left Myron confirming the earlier informing him of their next appointment on October 15, and relaying that his the pregnancy. Defendant. did were considering terminating (Id. at 59-61.) On October Plaintiff wife and he 14, not (Id. a day on which the communicate at 65.) with dealership anyone However, was closed, affiliated following a with doctor's appointment on October 15, Plaintiff sent a text message to Ross informing him that he would be in touch with an update. Dep., sent Doc. a 56-19, at 113-14.) text message would be attending to Myron Then, on the sixteenth, indicating an appointment with a that his Plaintiff wife specialist (Ross and he that day. (Myron Dep., Also on Ross Doc. the 56-15, sixteenth, saying the at at 17.) Plaintiff received a text message from following: 151; "We Ex. all 49, wish u with baby. She will be in our prayers." at 119; 38, Ex. Doc. Ultimately, work. on (Bartels arriving that 56-16, day, I, 56-16, beat [sic] of luck (Ross Dep., Doc. 56-19, at 17.) October Dep. Doc. 17, Doc. Plaintiff 2012, 56-6, Plaintiff at received 29.) a returned However, phone call to before from Ross during which Ross stated that "life goes on, we have a business to run, you evening, need to with Myron, unborn back to work." Plaintiff attended a managers' Tavern in Savannah. met get (Id. Ross, daughter's at 83.) (Id. at meeting at time off in Plaintiff and Adam and informed them that bones "were less than the the future; and (3) he did not That the Exchange At its conclusion, percentile and they were heavily bowed and curved"; need 71.) (1) five (2) his [sic] he would know exactly when he needed time off because the pertinent test results would not be back for six weeks. Meanwhile, Katherine Albert volunteers preparations two days and arrived for (Id. later, other at the at 86-88.) on Historic Defendant's foundation's Friday, Savannah October Foundation dealership "After Glow" to (Albert Aff., Doc. 40-1, In as preceding months, she arranged make benefit held there the next night. the 19, for 2012, ("HSF") final to %% 3, be 6.) Defendant's dealership to hold the function been introduced to Plaintiff Rhinehart, despite Defendant's Albert's she was chairing, as she met had with Myron or Mickey longtime employee. established Albert (Id. relationship UK 3-5.) with Yet, Defendant, Plaintiff approached her on the nineteenth and relayed that he had a "bone to pick" with her. (Albert Dep., Doc. 40-2, at 39.) Plaintiff stated to Albert that all of her planning should have been coordinated through him and not through Rhinehart. Aff. U 5.) Considering the manner in which Plaintiff spoke to her to be "extremely unprofessional," Plaintiff demonstrated inappropriate Albert, (Albert and other Albert also alleges that behavior unprofessional. that % 6.) (Id. yet disputed by Plaintiff, she Plaintiff considered According (1) used profanity when asking why he had not been given tickets to the event; stated guests at his own social gatherings to used flowerpots (2) to relieve themselves; (3) used profanity when directing Albert not to for move his assembled coordinate Dep., Doc. desk group of within 40-2, Terri O'Neil, event; Defendant's short at 62-63, Considering embarrassing," a the time (4) employees frame. complained about (Id. ^ 9-10; an need the to to Albert 66.) Plaintiff's Albert and behavior telephoned to HSF's be "so demeaning development director, after she left the dealership on October 19. part of that conversation, and As Albert informed O'Neil that she would not be returning to the dealership to fulfill her commitment as "After Glow" premises." chair (Albert unless Aff. then called Myron. Plaintiff told Albert at her and - [being] as he that then, to With this to Myron, was the no longer on information, O'Neil boss O'Neil disclosed and she the that should be word this and - and just started cursing inappropriate." Plaintiff Myron (Myron Dep., the Plaintiff complaint ladies and apologize. later apologized phone on October 19 56-6, receiving called inform him of contact the I, Doc. "he "was Doc. 56-15, at Never "as embarrassed or as disappointed or as angry" was O'Neil f 13.) According talking to him and XF' 167-68.) Plaintiff phone and (Id. at O'Neil for after to 167.) his O'Neil Dep., call on the Doc. Myron that Plaintiff had apologized. him to to Accordingly, behavior 56-23, nineteenth, talking instruct and in person on October 20. at 107; his to soon both by (Bartels Dep. at 43-46.) O'Neil After relayed to (O'Neil Dep. at 46.) Allegedly based solely on the information he received from O'Neil regarding Plaintiff's conduct, Plaintiff's After his employment. reaching this intentions. (Myron decision, (Id. at Myron decided to terminate Dep., Myron 158-60.) Doc. 56-15, informed Adam at 158.) and Ross of Having previously expressed their concern over Plaintiff's effectiveness as general manager, Adam and Ross were content with their father's decision. (Adam Dep., Doc. 56-17, at 125-26; Ross Dep., Doc. 56-19, at 145-46.) Therefore, on the Myron and Adam met room. the think 104.) Then, gotten 56-6, telling Plaintiff the Adam together Tuesday, I, Doc. by [they were] of October 23, 2012, with Plaintiff in the dealership conference (Bartels Dep. conversation morning biggest relayed over the at 103-04.) that shitbags to in Plaintiff previous Adam initiated he the going to (Id. at world." that weekend, "was the family discussed had matters, and decided that October 23 would be his last day of employment. (Id.) Adam further stated that wrong" and that their decision was (Id.) Plaintiff "had done nothing "purely a business decision." Myron then addressed Plaintiff stating that "he knew what [Plaintiff] was miscarriage." going (Id. ) through because . later, separation notice had that had they were on November regarding 13, 2012, Plaintiff's Ross 49.) Within that document, completed termination that Failure to subordinates, work well with community members, a was (Ross Dep., Ross Doc. indicated that Plaintiff had been discharged for the following reasons: 1. a severance package and a letter submitted to the Georgia Department of Labor. at . (Id.) Weeks 56-19, . Myron also told Plaintiff going to give him a three months' of reference. Adam others and (both superiors). For example: -Acura representative would not visit store due to poor relationship with [Plaintiff]. -Productive salespersons resign because [Plaintiff's] temper and abrasiveness. -Other current complaints. employees voiced -Cursing at and upsetting during fund raising event. of numerous member of [HSF] 2. Failure to meet minimum production requirements (sales and finance agreed on by both parties at time of promotion from service department). 3. Use of company credit card for personal services. (i.e., 4. meals) Overall poor attitude which created hostile work environment. 5. Failure to properly account for incentive objectives which led to at least $160000 in lost funds. 6. Uncontrolled spending without approval throughout store. (Ross Dep., reasons, Doc. 56-20, Plaintiff, never disciplined, during 56-19, time or (Adam Dep., the filed Defendant (Doc. 40) . Wainwright, as general told that he Doc. his birth of complaint his 56-17, at daughter manager, was in seeking (Desiree Decl., Doc. 56-3, fl 5.) 9) , Despite these termination was in jeopardy 135; Ross Dep., at 66-69.) Following Plaintiff his written up, of losing his job. Doc. Ex. 8, at 1.) filed the Thereafter, 772 F.2d 822, 825 under the 2013, FMLA. After filing its answer (Doc. instant in redress February motion for compliance (11th Cir. summary with 1985) judgment Griffith v. (per curiam), the Clerk provided motion, or with notice the summary judgment rules, other default. (Doc. Plaintiff materials (Doc. 54), filed a in 41.) sur-reply opposition, filed (Doc. a 66). the summary judgment the right to file affidavits and Subsequently, Defendant of the Plaintiff reply (Doc. consequences filed 62), Consequently, a of response and Plaintiff Defendant's motion is now ripe for the Court's consideration. II, Defendants' motion DISCUSSION for summary judgment will be granted only if "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. if P. could 56(a). affect In this the substantive law. 248 (1986) . Court Real of Anderson v. view the party, Corp. , 475 U.S. inferences outcome facts the are suit "material" under Liberty Lobby, in Prop. , in Matsushita 574, [its] 941 facts 587 Elec. (1986), favor," F.2d the 1428, light most Indus. the Inc., In evaluating the contentions of must non-moving context, Co. they governing 477 U.S. 242, the parties, the favorable the v. to Zenith Radio and must draw "all justifiable United 1437 States (11th v. Four Cir. 1991) Parcels (en of banc) (internal punctuation and citations omitted). Initially, the moving party bears the burden and must show the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). How to proof carry at 1115 this trial. (11th burden depends Fitzpatrick v. Cir. 1993) . When on who the the movant may carry the of by ways — negating an 2 non-movant proof at trial, two the Atlanta, City of bears has burden F.3d the of 1112, burden of initial burden in one essential element of the non- movant's case or by showing that there is no evidence to prove a fact necessary to Clark, Inc., Adickes v. 477 U.S. met its 929 S.H. F.2d 604, Kress 317). opposition, the non-movant's & case. 606-08 Co., 398 See (11th Cir. U.S. 144 Clark v. 1991) (1970) Coats & (explaining and Before evaluating the non-movant's Celotex, response in the Court must first consider whether the movant has initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. (11th Cir. the 1997) (per curiam). non-movant Clark, there is may City the of Columbus, 120 F.3d 248, 254 A mere conclusory statement that burden at trial, the movant avoid indeed summary judgment." proof meet and only if — non-movant that cannot v. at trial is insufficient. 929 F.2d at 608. If — the Jones Id. a summary material carries judgment issue of its by fact initial burden, "demonstrat[ing] that precludes When the non-movant bears the burden of the non-movant must tailor its response method by which the movant carried its initial burden. to the If the movant presents evidence affirmatively negating a material fact, 10 the non-movant withstand fact a "must directed sought to be the movant shows non-movant must that was with verdict negated." either with motion show motion deficiency." at that relying burden by at on the based 1117. the 1032, 1033-34 to on The Cir. on the F.3d at If fact, contains to material 1116. material withstand the alleged non-movant pleadings (11th 2 record or allegations contained in the complaint. F.2d trial sufficient the evidence by the movant or "come forward sufficient trial Id. at evidence on a uoverlooked or ignored" evidence evidence Fitzpatrick, an absence of additional verdict respond by a directed evidentiary cannot repeating carry conclusory See Morris v. Ross, 1981). Instead, the its 663 non-movant must respond with affidavits or as otherwise provided by Federal Rule of Civil Procedure 56. A. Under (1) the the employee employer denied Supply, FMLA, Inc., FMLA an was [him] Interference interference entitled to claim a benefit, that benefit." White v. 789 F.3d 1188, 1. 1191 (11th Cir. (1) "suffer from two and elements: (2) [his] Beltram Edge Tool 2015). Benefit Entitlement To be entitled to an FMLA benefits, alia, "has a serious an employee must, health condition that inter makes [him] unable to perform the functions of [his] position" and (2) "give proper notice" to his employer. 11 Id. at 1194-95. a. Serious Health Condition Under 29 C.F.R. FMLA leave if § 825.120(a)(5), needed to care "[a] for a spouse is entitled to pregnant spouse who is incapacitated or if needed to care for her during her prenatal care, or if child if needed she to has a care for serious her following health the birth condition." of a Similarly, " [b]oth parents are entitled to FMLA leave if needed to care for a child with a §§ 825.113 serious health condition if through 825.115 and the requirements of 825.122(d) are met." Id. § 825.120(a)(6). A "serious impairment, inpatient care health in facility; or provider." 29 determination Rather, is "an illness, or physical or mental condition that care "evidence condition" a (B) U.S.C. on this received by the hospital, Court at continuing § the Id. 1194-95 employer ... to the Court "all ("It make is by not White, 789 available may the first involves [] residential However, employer." use or treatment 2611(11). issue, should inquiry. hospice, injury, a medical health in to at evidence" seem care making limited F.3d (A) unfair a the 1194. in its to the serious-health-condition determination using evidence that the employer did not see until after it made the determination. But . . . other provisions in the FMLA protect employers from being sandbagged."). 12 Here, Plaintiff has provided enough evidence to produce a genuine dispute as to whether his wife and his daughter had a serious health leave. First, "perform daughter the hospital 825.114. "a by a was involving health remained due to health care employee's in the for two nights, inpatient b. entitled 30 days' as provider." impracticable, notice as October 17, notice of [his] as 29 2012, § because care serious health C.F.R. §§ 825.113- need for notice, FMLA White, need leave 789 for must F.3d at leave is he must give his employer "at least unless practicable.'" By to C.F.R. intensive she had a when an employee's giving informing Id. the 30 days' notice (quoting Kaminskys on is xsuch 29 U.S.C. § the evening of that he would need time off in the future as a result of his wife's pregnancy, dispute 29 in which case the employee must give only is 2612(e)(2)). involving Additionally, neonatal care. pregnancy, tt 5-6.) it is here, advance FMLA Proper Notice Regarding notice, foreseeable, her condition satisfy two criteria - notice and content." 1195. to hospitalized and thus unable to serious (See Desiree Decl. "An he (See Desiree Decl. ff 5-6.) Plaintiff's condition which activities" had treatment 825.115(b). of daily wife continuing for because she was other Plaintiff's unit condition whether the Plaintiff has timing 13 of his raised a genuine FMLA notice was sufficient. notice, that As that the for the is a more contents of sufficiency of the difficult question. an employee's contents The notice be of his FMLA requires "'sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and leave.'" [of] the anticipated at 1196 (quoting 29 Id. there, when the employer that employer must qualifies employee potentially then for 825.303(b))(internal C.F.R. gives and § whether protection." quotation notice leave the Id. duration is and the "From to [his] needed, employee's (citing marks of 825.302(c)). sufficient FMLA-qualifying ascertain FMLA timing 29 other the absence C.F.R. § citations omitted). In this Plaintiff acronym used "FMLA" Kaminskys. that he case, the the at However, Court words any "Family point was experiencing problems his wife specialist; in no evidence Medical his indicating that Leave Act" conversations or the with the Plaintiff has produced evidence indicating informed Myron of the had' seen finds following: (1) his pregnant wife with their unborn child; multiple doctors, including at (2) he and least one (3) he would need time off in the future as a result of this complicated pregnancy; and (4) he did not know exactly when he would need time off because important test results would not be that, back with for six weeks. respect to his Additionally, the communications 14 record reflects with Defendant, Plaintiff was fully transparent and timely forthcoming "with as much information as Express Corp., [he] 461 F. had available to App'x 876, 883 [him]." Wai v. (11th Cir. Federal 2012) . Thus, given the information provided and Plaintiff's completeness and timeliness in providing it, the Court finds that a genuine dispute exists as to whether notice was adequately given. See id. 2. Benefit Denial An employee's right to FMLA leave has been interfered with, quite clearly, avoid having rights once when to becomes Inc., "an employee can be [his [ right FMLA, if the any request F.3d 1231, inquiry as regardless Court's to of whether his query as BBVA 4715865, Compass at *16 Pereda v. (11th Cir. thereby Krutzig v. 2010). an employee FMLA request is Pulte simply a pretext (N.D. Ala. Sept. 15 regardless Home have 22, Corp., the been essentially the No. Yet, violating the of 602 Court's dismissed as the asserted reasons for for retaliation. Inc., leave 2012). Consequently, to whether an employer's FMLA to from exercising dismissed would order Brookdale Senior without been "in rightful [him] Cir. Bancshares, him preventing FMLA, leave." with 1275 would have (11th termination are v. dismissed, FMLA 1236 [him] eligible." commence for terminates 666 F.3d 1269, employee to employer accommodate [he] Living Cmtys., his same See Hawkins 2:12-CV-03922, 2014) . For this 2014 WL reason, the ability of Plaintiff's FMLA interference claim to withstand summary judgment will depend upon the outcome of the pretext determination below. B. To establish a "must show Plaintiff protected action; activity; and protected Mary's prima facie that: case (1) he (2) he experienced is a activity and Care the Sys., causal adverse Inc., 439 F.3d to defendant adverse action." must then show Id. that articulate an a employment between Hurlbert the v. St. (11th 1297 Cir. "the burden then shifts legitimate defendant's statutorily adverse 1286, "If the defendant does the retaliation, in action." If Plaintiff makes this showing, to FMLA connection 2006) . the of engaged there (3) Health FMLA Retaliation reason so, proffered for the the plaintiff reason for the adverse action is pretextual." Id. Based analysis on the above, Plaintiff genuine dispute by FMLA the Pereda, 666 evidence as and submitted has met to whether he suffered F.3d at 1276 an his the burden of engaged adverse ("[A] and interference establishing a in activity protected employment pre-eligible action. request for post- eligible leave is protected activity."). Additionally, Plaintiff days was terminated less than seven Defendant of his future need for leave, after See because informing a genuine dispute exists regarding whether Plaintiff's invocation of his FMLA rights was 16 the cause of ("Close his temporal adverse proximity employment circumstantial fact termination. of a Telecomms., Moreover, between action evidence causal See Hurlbert, to connection.'" Inc., 231 F.3d protected is create 439 F.3d at conduct generally a genuine (quoting 791, and an xsufficient issue Brungart 799 1298 of material BellSouth Cir. (11th v. 2000))). with evidence indicating that Plaintiff was terminated because of his behavior toward Albert, Defendant has provided a legitimate to reason Accordingly, determine in for its its decision remaining whether Plaintiff terminate the analysis, has Plaintiff. need Court submitted sufficient only evidence to withstand summary judgment on the issue of pretext. "A plaintiff may persuading the court motivated the show that employer a pretext 'either discriminatory or indirectly directly reason more by showing by likely that the employer's proffered explanation is unworthy of credence.'" Diaz v. Transatlantic 2010) (quoting Tex. 248, 256 1160, merely F. Cmty. do v. (11th quarrel in the Cnty. Cir. with the App'x 93, Affairs so, implausibilities, Brooks 1163 of To contradictions' (quoting 367 Dep't (1981)). 'weaknesses, or Bank, "a v. 97 Burdine, plaintiff may inconsistencies, employer's Comm'n 2006)). of "However, wisdom 17 of the a Cir. 450 point U.S. to incoherencies, proffered Jefferson (11th reason." Cnty., 446 plaintiff employer's Id. F.3d cannot reason, but must meet quotation the reason marks and proximity action on citation between employment head the and rebut omitted). protected is evidence it." While Id. (internal close temporal activity and pretext, it of an adverse is "probably insufficient to establish pretext by itself." Hurlbert, at 1298. Other significant evidence includes of "an pretext that employer's courts failure 439 F.3d have to found articulate clearly and consistently the reason for an employee's discharge" and "an employer's deviation from its Id. at In argues own standard procedures." 1298-99. addition that termination to six the close other rationale temporal factors was proximity, indicate pretext. that Those Plaintiff Defendant's factors and their significance are addressed below. 1. As stated Separation Notice within the Kaminskys' highlighted by Plaintiff's sur-reply, depositions the decision to Plaintiff was made by Myron. (Myron Dep., 59; 55-56; Adam Dep., 147-48; PL's Doc. Sur., after Plaintiff was notice of 56-17, Doc. separation termination. 56-20, 8, at 66, at 7.) Doc. Ross Dep., However, informed of this decision, Plaintiff's Ex. at 1.) providing (Ross While at Dep., least Doc. acknowledging 18 and terminate 56-15, Doc. six 56-19, that at 157- 56-19, almost Ross as a at month completed a reasons at 49; Defendant for Doc. has disavowed any Albert, reason Plaintiff demonstrates judgment. an of In each of ruled employer "shifting the divert the notice Plaintiff's the reasons, sufficient list to toward of reasons withstand at 21-22.) reasons" summary In support of his in courts' submitted by Plaintiff, dismissed from case, Plaintiff's Thus, this conduct pretext at 22.) cases a diverted not for (Id. for in this While that inconsistency determinations. did contends Plaintiff's Plaintiff points to a number of cases highlighting the significance Yet, than (PL's Resp., Doc. 54, position, court other employee its proffered the listed additional toward that an rationale.1 separation, fewer termination, behavior finding termination reason no relevant within its notice of Defendant, from after the it, Myron than five as a provided Plaintiff. additional importantly, Albert reasons terminated also reasons referenced contributing are not reason. contradictory but rather supplementary ones offered by Ross - one who was not the ultimate decision maker on this issue.2 As a result, Plaintiff's argument and the cases raised are unpersuasive. 1 See Cleveland v. Home Shopping Network, Inc., Cir. 2004); Carlton v. Mystic Transp., Inc., 2000); Bechtel Constr. Co. v. Sec'y of Labor, 1995); *3 Crabbe v. (W.D. Auth. , No. Okla. Am. Apr. Fid. 30, 1:11-CV-02108, Assurance Co., 2015); No. at Stallworth v. E-Z Serve Convenience Stores, 125304, at *4 (M.D. Ala. Feb. 12, 2001). 2 F.3d 1189, CIV-13-1358, Connelly v. 2012 WL 6765579, 369 Metro. (11th 2015 WL 1977380, Atlanta *10 (N.D. No. A. Ga. Rapid Dec. 99-D-1503-N, Plaintiff disputes the validity of these supplemental reasons. 19 1195 202 F.3d 129, 137 (2d Cir. 50 F.3d 926, 934 (11th Cir. at Transit 7, 2012); 2001 WL 2. Myron's Knowledge Plaintiff next contends that because Myron had insufficient knowledge regarding Defendant's (PL's Plaintiff's proffered Resp. at unpersuasive. behavior termination 23.) The toward rationale Court is finds Albert, pretextual. this argument Plaintiff has not offered sufficient evidence to rebut the fact that O'Neil informed Myron of the following prior to his termination: (1) Plaintiff told Albert boss and she should be talking to him"; "F" word in otherwise speaking "cursing at Dep., Doc. with Albert; her and - [being] "he was the Plaintiff used the and 56-15, at 167-68; O'Neil Dep. 3. (2) that (3) Plaintiff inappropriate." was (Myron at 40-42.) Plaintiff's Apology Plaintiff also argues that the following present a genuine dispute as pretextual: and made response" [O'Neil] to (1) whether Myron's termination rationale was Myron's knowledge that Plaintiff had "apologized things right upon with learning O'Neil" that and (2) Plaintiff for any bad behavior." Myron's had (PL's Resp. "positive "apologized at 24.) to However, simply because Myron knew that Plaintiff had "made things right with O'Neil," it does not moved beyond the incident. necessarily Plaintiff's apology that Myron had The Court finds Plaintiff's evidence indicating that Myron gave a of follow "positive response" insufficient 20 for it to upon learning conclude that Myron's termination rationale was not "an honest explanation for why he fired [Plaintiff]." (Id.) Put another way, this evidence does not constitute a head-on rebuttal of Defendant's proffered reason for termination. a plaintiff employer's cannot reason, See Diaz, merely but 367 F. App'x at 97 quarrel must meet with the the reason ("However, wisdom head on of and the rebut it.")(internal quotation marks and citation omitted). 4. Defendant's Toleration of Misconduct Plaintiff further asserts that because Myron has overlooked similar employee misconduct in the past, his failure to do so in this Specifically, instance highlights clients is evidence of pretext. that Myron did not have their deal" called with terminate (1) " [c]onfusion" and Plaintiff Rhinehart when his "complaints half a dozen times over seventeen years; (2) about Dennis i Purcell when "he got the car lot"; or (3) drugs in front "A 56-4, typical fistfight with another salesman on Jarred Pratt when he was routinely "high on of unconsciousness."3 Decl., Doc. into a customers and (Rhinehart Dep., . Doc. . . 56-21, slipping at 77; into Jacoby Kf 4-7.) means comparator evidence." of Moon v. establishing Kappler, pretext Inc., No. is through 4:13-CV-1992, 3 The evidence regarding Purcell and Pratt comes to the Court through the declaration of Fred Jacoby. (Doc. 56-4.) Defendant objects to this evidence on the grounds that Jacoby lacks personal knowledge and that his statements are without probative value. (Doc. 61 at 13-14.) After reviewing Defendant's arguments, the Court overrules its objections. The Court is satisfied that Jacoby's statements are based on personal knowledge and are sufficiently probative. 21 2015 WL 2381061, employer pretext Sch. is Bd. , 244 "a at in *21 FMLA F.3d 1253, [the what the phrase is clear that employees Id. 1259 May v. (analyzing Orange 2001)). who Id. "While (internal there has 'similarly situated' the quotation been some 'similarly situated' in all to same severely marks dispute in this plaintiff Cnty. A comparator committed means the burden is on the were 2015) Silvera (11th Cir. employee 19, but who was disciplined less plaintiff]." citation omitted) . Ala. suit)(citing similarly-situated violation of work rules, than (M.D. and as to context, it show that the relevant respects." (internal quotation marks and citation omitted). After a that these genuine actions, review of prior dispute the mistreatment Rhinehart's hardly the as a to of of Purcell as can be the employee employer potential conduct same evidence, instances behavior of this and Unlike Pratt or classified as cannot conclude misconduct pretext. customer Plaintiff's. Court does third such, At worst, indicate Plaintiff's not constitute party. his a Though actions Rhinehart are led third parties to believe that they were getting a more favorable deal than they were. is accused of (Rhinehart Dep. intentionally at 77.) directing inappropriate behavior at a third party. 22 Conversely, profanity and Plaintiff otherwise 5. Plaintiff past also employee pretext Termination of Past Employees who in his states "needed case. wife had or Defendant's requested In particular, fact that Rhinehart was Thompson's that leave" diagnosed is Plaintiff "directed to fire been termination with of evidence points of to the [Doug Thomson]" after "serious respiratory problems and septic shock."4 (Thomson Decl., Doc. 56-5, f 4.) Thomson's a In words: Shortly [after learning of my wife's diagnosis], I was told that I had to show up for a sales meeting on my day off. During the sales meeting, a sales consultant and I got into a debate about a sales technique and, at one point, I said I did not agree with him but in any event, my wife was ill and I should not even be there. A finance manager and a sales manager told me to go home and take some time off because of my wife, which I did. When I returned, Mickey Rinehart [sic] brought me into a meeting and fired me. He told me that my recent sales were not high enough, and that he was directed to fire me. (Id.) 4 For the same purpose, Plaintiff offers the following statement by Fred Jacoby: WI later heard from [Plaintiff] that Myron Kaminsky directed him to fire [Michael] Johnson because 'they couldn't have a guy with heart issues working' at the dealership." (Jacoby Decl. ^ 8.) instructing Plaintiff to fire Johnson as a result of his ordinarily be admissible as an opposing party's statement. 801(2). However, because this statement comes to the Plaintiff's hearsay statement, it is not admissible statement falls within an applicable exception. See Fed. Myron's statement heart issues would See Fed. R. Evid. Court only through unless Plaintiff's R. Evid. 801, 805. Accordingly, because Plaintiff's statement does not fall within an exception, this statement, in its entirety, is inadmissible. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012). Thus, Defendant's objections as to paragraph eight of Jacoby's declaration are sustained. (Doc. 61 at 1415.) 23 While relevant the to Court its to suggest feared an that (2) whether nserious his failure to indicate termination request. "fail [ing] to Yet, belied sell as probative Brooks, plaintiff] showing the F.3d must that the the fact many cars Thomson's allow Plaintiff 446 its Defendant conclusion is whether the person wife's have meaning condition; constituted of 29 a U.S.C. § or even planned to make, most significantly, that ... because his would perhaps Accordingly, within to questions Thomson as this admitted to the Kaminskys had set - the very reason that Thomson was given for termination. information by and this (1) of whether Thomson made, for me as a goal" his knew within an is However, condition" (3) admissible Court terminated condition and conclusion was wife's 2611(11); as this evidence can be viewed in a Thomson his health FMLA the FMLA request. belied by Thomson's for evidence Certainly, imminent responsible this inquiry, present probative value.5 way views at 1163 introduce asserted the Court declaration to survive (xx[T]o avoid is to not be find summary judgment probative merely a the sufficiently summary judgment. significantly reason does See [the evidence pretext for discrimination.")(internal quotations and citation omitted). 5 To the extent out-of-court statements within the excerpt are offered for the truth of the matter asserted within, they are statements of an opposing party and are therefore admissible. See Fed. R. Evid. Consequently, Defendant's objection (Doc. 61 at 15) is overruled. 24 801(d)(2). 6. Statements Made by Defendant on the Termination Date At the Plaintiff termination were present, nothing wrong" decision." that they Plaintiff Adam and that argues told which Plaintiff I at 104.) Plaintiff that at their decision was (Bartels Dep. terminated meeting that Myron, he and "had done "purely a business Because Defendant contends for Defendant's Adam, his conduct rationale at toward Albert, the termination meeting is inconsistent and is thus evidence of pretext. As Plaintiff maintains, his the rationale given to Plaintiff at termination meeting and the one now advocated by Defendant are inconsistent. As a result, Plaintiff has produced evidence that "may permit the trier of fact to conclude that the employer unlawfully discriminated." Inc. , 530 U.S. 133, 148 "always be adequate Id. "Certainly plaintiff sufficient rational has there evidence the something Id. defendant other Sanderson Plumbing Prods., Yet, such a sustain a jury's will to factfinder v. (2000) . established discriminatory." that to Reeves be a reject could For gave than finding of instances prima the the where, facie case defendant's conclude instance, that "'if false 114 F.3d 1332, 1338 25 although and (2d Cir. set the the forth explanation, no action was show explanation discrimination, liability." circumstances the the discrimination will be weak or nonexistent.'" v. Vassar Coll., showing will not Id. to conceal inference of (citing Fisher 1997)). Thus, not must in limit statement. evaluating the its The inconsistency at inquiry Court to must simply hand, the Court contents of consider also the Adam's evidence indicating that (1) Adam began the termination meeting by telling Plaintiff that he "was going to think [they were] the told world"; (2) also was [Plaintiff] Myron going through miscarriage"; (3) severance package statement that messages that, they Myron and a offered "Adam Kaminsky prayers with Plaintiff because letter for my bad for characterization of Plaintiff's me"; some termination, that Adam . Plaintiff of Ross baby"; "he . a . had (4) Kaminsky (5) knew three reference; and at his termination meeting, "felt the biggest shitbags in what had a months' Plaintiff's sent Plaintiff's me text statement Adam and Myron expressed that and (6) of Myron's Plaintiff's statements, as expressions of on in-brief the day sympathy. of (Bartels Dep. I at 104; Bartels Decl., Doc. 56-1, tt 6, 8; PL's Resp. at 26.) Evaluating this evidence in the evidence presented on the issue of Court finds initial that reasonable jury termination rationale was termination feelings Plaintiff's no discriminatory intent. of explanation sympathy Rather, was that context could of all other termination, find given to that the Adam's conceal a the Court finds that the initial indisputably both 26 Myron given and to further Adam the carried. Consequently, the Court is left only with the close temporal proximity between Plaintiff's FMLA notice and his termination on which to Court cannot whether base its pretext conclude Defendant's pretextual. determination. that a genuine legitimate For that reason, Without dispute termination more, exists the as to rationale summary judgment is was proper as to both Plaintiff's interference claim and his retaliation claim. Ill, For for the reasons above, the Court (Doc. 40) and accordingly DENIES summary judgment Defendant's motion for Plaintiff's motion to to ENTER Street, JUDGMENT Inc., and deadlines and favor further and CLOSE (Doc. of Defendant's order 30). to motion MOOT 28) (Doc. AS and The Clerk is directed Defendant directed 4 02 East TERMINATE Broughton all motions this case. ORDER ENTERED at Augusta, March, GRANTS protective compel in is CONCLUSION Georgia, this _j^f_ day of 2016. HONORABLE J. RANDAL HALL UNITED/STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 27
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