ROBERT E. WIER, District Judge.
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.
On December 19, 2016, Plaintiff Kenton Jones fell while inspecting a cattle trailer for his job as a Claims Adjuster for Defendant Progressive.
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 Jones and 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 HR 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
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 perceived Jones 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,
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 non-moving 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 party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." (emphasis in original)).
A fact is "material" if the underlying substantive law identifies the fact as critical. Anderson, 106 S. Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 2511; Matsushita Elec. Indus. Co., 106 S. Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'") (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 F. App'x 428, 444-45 (6th Cir. 2006).
Jones alleges two distinct FMLA theories: interference,
Hodnett v. Chardam Gear Co., Inc., 749 F. App'x 390, 393-94 (6th Cir. 2018). Absent direct evidence, the prevailing McDonnell Douglas burden-shifting framework applies to FMLA retaliation and interference claims. See Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 630 (6th Cir. 2018) (Plaintiff "offers circumstantial evidence to support this [retaliation] claim, so we apply the McDonnell Douglas burden-shifting framework."); Mullendore v. City of Belding, 872 F.3d 322, 327 (6th Cir. 2017) ("[A] plaintiff's success in establishing her prima facie [interference] case does not create a strict liability regime for employers[.]"). Under this rubric, an employer confronting a facially valid claim may proffer "a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct." Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008). A plaintiff must rebut an employer's qualifying proffer "by a preponderance of the evidence." Id. The employee must, alternatively, show that the explanation "(1) has no basis in fact, (2) did not actually motivate . . ., or (3) was insufficient to warrant the challenged conduct." Mullendore, 872 F.3d at 328 (quotation marks and citation omitted).
As to the interference claim elements, Progressive disputes only the fifth. Specifically, Defendant contends that it gave Jones all statutorily required leave. DE 61-1 at 18-20. In response, Jones claims Progressive: (A) "chilled" his exercise of FMLA rights, (B) disciplined him for using FMLA time, and (C) forced him to return work during FMLA leave. DE 64 at 17-19. For various reasons, the Court rejects the first two theories but accepts the last.
"Interfering with the exercise of an employee's rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." 29 C.F.R. § 825.220.
For instance, Jones alleges that it was "impossible for him to comply with all of his employer's contradictory requests" and that Kemp, Liebler, & Watson had "wildly different ideas about when and why Mr. Jones should return to work[.]" DE 64 at 17. True or not, Jones fails to connect either contention to actual repression of his FMLA use. Jones has always claimed that he came back to work as soon as he received an unequivocal direction to do so, i.e., after Liebler explicitly confirmed that Progressive could accommodate his restrictions and would expect him back on January 11, 2017. See DE 64 at 4 (listing pre-return communications); DE 60-2 at 18 (Jones confirming that if they "told me to come back under these restrictions, then I would have come back"); DE 64-20 at 02:00 (Jones explaining that he did not advise Sharon Kemp that he could not return on January 5, 2017, because Kemp never confirmed that Progressive could accommodate his restrictions). Thus, whether or not Jones was confused about when Progressive expected him to return, there is no evidence that such a misunderstanding truncated his time off. Mix ups on Progressive's end, if anything, extended (from Jan. 4 to Jan. 11) Jones's leave.
Jones also fails to establish that alleged "retaliatory conditions" after he returned to work denied him any benefits he was owed. First, the FMLA scheme permits employers to offer a "
Jones's alternative "discipline" theory, based on Progressive's investigation into the validity of his leave, is also fatally flawed. As with his "chilling" theory, Jones does not tether the investigation to any specific impairment of his FMLA rights. Jones does not claim (and no evidence suggests) that but for the investigation he would have requested additional time-off. Further, in the Sixth Circuit, "employers are permitted to investigate their employees for wrongdoing, including wrongdoing related to protected leave." Groening, 884 F.3d at 631 (quoting Dendinger v. Ohio, 207 F. App'x 521, 527 (6th Cir. 2006) ("We have repeatedly held . . . that neither an internal investigation into suspected wrongdoing by an employee nor that employee's placement on paid administrative leave pending the outcome of such an investigation constitutes an adverse employment action.")). Progressive did no more.
In sum, Progressive's modification of Jones's duties after his return was consistent with an FMLA authorized light-duty position. Given Jones's undisputed health status at the time, Progressive did not deny Plaintiff any FMLA entitlement by failing to restore him to his prior role. Nor did Progressive's investigation regarding dishonesty— i.e., a "lawful, non-retaliatory bas[is] for termination"—itself interfere with Jones's FMLA rights. Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 284 (6th Cir. 2012); see Kitts v. Gen. Tel. N., Inc., No. 2:04-CV-173, 2005 WL 2277438, at *11 (S.D. Ohio Sept. 19, 2005) ("[N]othing in the FMLA prohibits an employer from investigating allegations of dishonesty[.]"). Finally, Plaintiff offers no rebuttal for Progressive's non-FMLA explanations for the investigation or light-duty modifications. Grace, 521 F.3d at 670 ("[I]nterference with an employee's FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct." (quotation marks and citation omitted)).
Jones offers little to build on the conclusory assertion that Progressive forced him to return to work on January 11. See DE 64 at 19. Nonetheless, the Court finds the full record amply supportive, and the theory survives summary judgment. The key question, under the relevant regulation, is whether Progressive "coerced" Jones to return on light duty by, e.g., making acceptance "a condition of employment." 29 C.F.R. § 825.220(d). An employer may offer an employee on FMLA leave a light-duty return, but the employer may not demand that such employee accept. Id. (authorizing "an employee's voluntary and uncoerced acceptance (not as a condition of employment) of a light duty assignment"); Stein v. Atlas Indus., Inc., 730 F. App'x 313, 317 (6th Cir. 2018) ("Stein is correct that an employer may not require that an employee return to work once cleared for light duty if the employee has unexhausted FMLA leave.").
For proof on the issue, Jones relies on two sub-theories. First, he construes Watson's purported admission that Jones's termination was a result of absence on a (subsequently approved) FMLA day as proof that acceptance of light duty was mandatory. DE 64 at 15. Next, Jones argues that nobody from Progressive explicitly told him that he could continue his FMLA leave rather than accept the light-duty assignment. Id. Progressive, in reply, contends that Watson made no such concession and that Jones purportedly admitted that he returned to work voluntarily. DE 69 at 1-3.
Both sides make too much of ambiguous deposition statements. Watson's statement hardly amounts to an admission that Progressive fired Jones because he failed to show up while on FMLA leave. Given the full deposition context, the Court finds that Watson's statement provides no more than a scintilla of evidence that the identified January 2 absence drove Progressive's termination decision. See Staunch v. Continental Airlines, Inc., 511 F.3d 625, 628-29 (6th Cir. 2008) ("It is not sufficient for the party opposing summary judgment to present a `mere scintilla' of evidence; the evidence must be such that a reasonable jury could find in her favor."). Watson broadly stated on several occasions that Jones was terminated for dishonesty. DE 69-1 at 4 (Dep. at 24); id. at 9 (Dep. at 49). Watson, having already testified that he did not remember specific dates, merely confirmed what a document reflected, i.e., that he believed Jones was supposed to be at work on January 2. See DE 64-16 at 4 (Dep. at 54); id. at 5 (Dep. at 25); DE 69-1 at 7 (Dep. at 39). Jones treats this one-off statement from an admitted date-amnesic manager as indicative directly of intent. The Court is unpersuaded.
The communications indicate that Watson believed Jones was supposed to be back on January 2, 2017. DE 60-9 at 21 (Jan. 2, 2017, Watson e-mail to Jones: "I had received a notification that you would be back today? Any Update you can provide?").
Finally, the Court notes that as of January 5, 2017, Jennifer Liebler (who ultimately initiated Progressive's investigation) "suggest[ed] that [Progressive] accommodate the light duty request as of now" and anticipated that if such work ran dry Progressive would "send him back out until he's released to full duty[.]" DE 60-9 at 27 (Jan. 5, 2017, Liebler e-mail). In short, the full record conclusively shows that a January 2 return was not a condition of Jones's employment. Three days later, Progressive was contemplating a light-duty accommodation and, indeed, directed Jones to return on light duty more than a week after his January 2 absence.
However, contrary to Progressive's reading, Jones's testimony (along with Progressive's overtures) is hardly unequivocal as to a January 11, 2017, voluntary return. Jones stated that he would have returned if Progressive "told" him to come back and would have done whatever Progressive "told [him] to do[.]" DE 60-2 at 18 (Dep. at 117). Given workplace power dynamics, a manager's unvarnished directive carries inherent coercive import.
Jones's testimony does not stand alone. Progressive employees repeatedly cast Jones's return as a flat expectation and never presented continued leave as an option. See, e.g., DE 60-9 (Liebler Declaration at 4 "he is supposed to return to work"); id. at 31 (Kemp 1/5/17 e-mail—"When I spoke with [Jones] today I told him that . . . if we can accommodate we would expect you back to work immediately."); id. at 33 (Kemp 1/5/17 e-mail to Jones—"We are able to accommodate your restrictions . . . [and] will expect your return to work to your normal hours tomorrow at your local office."). In truth, it seems that FMLA coverage and related strictures were not on the Progressive team's radar in coordinating Jones's return. See, e.g., id. at 23 (Liebler 1/5/17 e-mail to Kemp— "[e]verything we have in hand indicates that [Jones] was supposed to be back to work on 1/2/17"). [The dearth of FMLA references in the investigative file is confirming. See generally id.] Rather, (and as Defendant contends) Liebler, Kemp, and Watson "expected" Jones to follow his doctor's restrictions, "returning to work when the provider certified that he could do so, consistent with workers' compensation laws." DE 61-1 at 20; DE 60-9 at 39 (Liebler 1/6/17 e-mail—"I spoke to Kenton briefly this morning. I informed him that the business can accommodate . . . and he is expected to return to work."); DE 64-20 at 6:30 (Liebler on 1/17/17 call—"you actually left after I informed you of the
Further, as the Court views this discrete aspect of the claim, Progressive offers no "legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct." Grace, 521 F.3d at 670. Again, Progressive "expected Mr. Jones to" return "to work . . . consistent with workers' compensation law." See DE 61-1 at 20. The applicable regulations bar setting such an "expectation" (carrying inherent employerauthority freight) wholly based on workers' comp status. In other words, the FMLA scheme anticipated (and forbade) Progressive's reliance on the proffered rationale. Thus, the Court finds that the "reason" Progressive offers for this particular conduct is not "legitimate[.]" Grace, 521 F.3d at 670; see also Arban v. West Pub. Corp., 345 F.3d 390, 401 (6th Cir. 2003) ("Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer.").
Jones, as to his return to work, offered sufficient proof to reach a jury as to each interference claim element. Specifically, a juror could reasonably conclude, based on this record, that Progressive coerced (mandated) Jones's return to a light-duty role. Certainly, there is no proof Progressive extended an option. Per Liebler "I wanted to ensure he understood that we would expect him back to work on [1/11]." DE 60-9 at 7. Under McDonnell Douglas, Progressive's failure to offer a legitimate, non-FMLA explanation means that Jones had no burden to show pretext; with no step three trigger, the Court's analysis ends here. Jaszczyszyn v. Advantage Health Physician Network, 504 F. App'x 440, 448 (6th Cir. 2012). Jones made out a prima facie case, had no rebuttal obligation, and is entitled to a trial on the distinct forcible-return aspect of his interference claim.
Initially, Plaintiff's allegations supporting his retaliation and interference theories were, excepting his ultimate termination, coextensive. See DE 25 at ¶¶ 24, 28. However, Jones, in Response, abandons all but Progressive's light-duty modifications to and termination from his job as predicates for the retaliation claim. See DE 64 at 20-21.
Jones first claims that Watson's deposition testimony constitutes direct evidence of retaliation and that he thus needs no further proof to make out a valid claim. DE 64 at 20; see also Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 432 (6th Cir. 2014) ("If an employee successfully presents direct evidence that the employer acted with discriminatory motive, `the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive.'" (citation omitted)). The Court, for multiple reasons, disagrees.
First, true direct retaliation evidence is a narrow set:
Hannon v. Louisiana-Pac. Corp., No. 3:17-CV-00922, 2018 WL 6102940, at *4 (M.D. Tenn. Nov. 21, 2018); see Demyanovich, 747 F.3d at 432 ("Direct evidence does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group. The evidence must establish not only that the plaintiff's employer was predisposed to discriminate on the basis of FMLA leave, but also that the employer acted on that predisposition." (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)). Second, as previously discussed, Watson's isolated statement, even under a Jones-favorable light, presents, at best, a bare scintilla of evidence that Jones lost his job for missing work on January 2, 2017. See also DE 64-16 at 5 (Watson Dep. at 25: "I'm not going to be able to recall specific dates."). Third, contrary to Plaintiff's argument, Watson never said that Jones was fired "for his use of FMLA[.]" DE 64 at 20. Fourth, as Plaintiff himself argues, Watson's deposition revealed, if anything, a disregard for or disinterest in Jones's FMLA leave—this is obviously (and logically) inconsistent with FMLA discrimination. See DE 64 at 22 ("Watson . . . knew that Mr. Jones was on FMLA, but did not care as to how that entitlement affected his decision to terminate Mr. Jones."). In short, Jones's direct evidence theory has no merit. Audi AG v. D'Amato, 469 F.3d 534, 545 (6th Cir. 2006) (The summary judgment standard "does not allow, much less require, that we draw strained and unreasonable inferences in favor of the nonmovant." (quoting Willis v. Roche Biomedical Laboratories, Inc., 21 F.3d 1368, 1380 (5th Cir. 1994)).
Turning to the circumstantial theory, Progressive does not dispute that Jones "engaged in an activity protected by the Act" or, at least as to the termination, that it "took an adverse employment action" against Jones.
Rather, Defendant disputes whether Plaintiff has shown a nexus "between the protected activity" and either predicate act. Id. Progressive modified Jones's duties the day he returned from FMLA leave and fired him less than a week later. "A plaintiff's burden in establishing a prima facie case is not intended to be an onerous one." Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). For present purposes, Progressive's challenged conduct came soon enough after Jones's leave to satisfy Plaintiff's causation burden. Tinsley v. Caterpillar Fin. Servs., Corp., No. 18-5303, 2019 WL 1302189, at *6 (6th Cir. Mar. 20, 2019) ("[I]f the adverse employment action closely follows the protected activity, then temporal proximity alone is sufficient to satisfy the causation prong[.]"); see also Grace, 521 F.3d at 677 (barring consideration of employer's rationale for prima facie purposes). Thus, Progressive needed to offer a legitimate, non-FMLA, explanation for its conduct.
As to Jones's modified responsibilities, Progressive asserts that it merely crafted a light-duty role for Plaintiff consistent with his doctor's orders. As to termination, Progressive contends that it fired Jones after a thorough investigation revealed that he lied in violation of core Company principles. The record amply and one-sidedly supports both contentions.
Jones's Baptist Health records, as of January 4, 2017, authorized an immediate return to work with the following restrictions: "No lifting[, pushing, or pulling] greater than 10 pounds" and "[n]o work above shoulder/chest level" with Jones's left arm. DE 60-13 at 2. Watson's communicated "Light Duty Assignment Requirements" were entirely (and undisputedly) consistent with Jones's doctor's orders. See DE 64-15 at 1 (Jan. 11, 2017, Watson e-mail to Jones: establishing 11, desk work only, requirements). As to termination, Watson repeatedly testified that Progressive terminated Jones for violating Progressive's core integrity principle through dishonesty related to his return to work. See, e.g., DE 69-1 at 3-4, 9 (Dep. at 21, 24, 49); DE 64-16 at 4 (Dep. at 53). Liebler's deposition (and the full record) confirms. DE 69-3 at 4 (Dep. at 109); see, e.g., DE 64-20 at 16:20. Jones's alleged deception began with the initial medical status, continued in characterizations of his release terms, and extended to gamesmanship and ondisclosure with respect to his location, travel, and availability for work from January 4 to January 10. Progressive's investigation, and the January 11 and January 17 calls, detail the Company's concerns about probity.
These reasons, "if believed by [a jury], would support a finding that unlawful [retaliation] was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2747 (1993). Put simply, Progressive carried its "extremely light" McDonnell Douglas step two production burden. Baseball at Trotwood, LLC v. Dayton Prof'l Baseball Club, LLC, 204 F. App'x 528, 536 (6th Cir. 2006); cf. Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996) ("It is important to note that the defendant need not prove a nondiscriminatory reason for [an adverse employment action], but need merely articulate a valid rationale." (emphasis in original)).
Thus, the retaliation claim's survival comes down to whether Jones "produced adequate evidence demonstrating that [Progressive's] proffered reason[s] were a pretext for discrimination." Seeger, 681 F.3d at 285. Jones needed to show "both that the reason was false, and that [retaliation] was the real reason." St. Mary's Honor Ctr., 113 S. Ct. at 2752 (emphasis in original). Plaintiff's options include showing that Progressive's explanations "(1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action." Seeger, 681 F.3d at 285.
Id. (quoting Joostberns v. United Parcel Servs., Inc., 166 F. App'x 783, 794 (6th Cir. 2006)). Jones's pretext theory has two pillars. Plaintiff claims: (1) that there is a genuine dispute as to whether he ever lied and (2) that Watson confirmed that Progressive fired Jones, not because he was dishonest, but for his January 2, 2017, absence.
Initially, the Court notes that none of Jones's pretext arguments addresses Progressive's explanation for modifying his job duties. Thus, to the extent Jones bases his retaliation claim on such conduct, the theory does not approach nor clear the McDonnell Douglas step three hurdle. As to Jones's dishonesty, the Court—though much of the honestly held belief proof strongly demonstrates otherwise—will assume for argument's sake that Jones creates a triable issue as to whether he actually lied. Nonetheless, "[a]s long as the employer held an honest belief in its proffered reason, the employee cannot establish pretext even if the employer's reason is ultimately found to be mistaken, foolish, trivial, or baseless." Seeger, 681 F.3d at 285-86 (citation and quotation marks omitted). Plaintiff wholly failed to show that (or create a triable issue on whether) Progressive did not honestly believe that Jones was dishonest.
Progressive thoroughly investigated.
On January 11, 2017, Liebler, Watson, and Leissner interviewed Jones regarding several apparent inconsistencies. DE 60-9 at 7. Specifically, and given the December 28, 2016, authorization for an immediate (though limited) return to work, Liebler asked Jones about his failure to return to work after his pre-scheduled vacation ended on January 2, 2017. Id. Jones stated that he did not have the authorizing paperwork. Id. Liebler asked about Jones's January 2 e-mail to Watson claiming that "they have taken me off work longer than expected[.]" Id. at 8 (Interview) & 20 (e-mail). Jones stated that he believed the doctor's office would have communicated with Progressive and that the doctor told him "you can't do that" when Jones described his typical work responsibilities. Id. at 8.
As to the Arizona trip, Jones said he purchased his tickets on January 5, but could not recall whether he purchased them in the morning or afternoon. Id. Jones stated that he flew to Arizona that same night and reported returning Tuesday night. Id. at 9. Though acknowledging that Kemp advised him of possible light duty prior to his departure, Jones explained that he chose to proceed with his travel plans because Progressive did not confirm light-duty availability until his January 6 conversation with Liebler. Id. at 8-9
In the following days, Progressive obtained and reviewed Jones's flight documents. See id. at 52 (Jan. 16, 2017, Liebler e-mail to Jones). The records revealed the following information: Jones booked his ticket on January 4, 2017, id. at 53, and Jones's flight left for Arizona on the afternoon of January 6, id. at 55. Liebler, Watson, and Leissner interviewed Jones again on January 17. Id. at 9. Jones surreptitiously recorded this call. See DE 64-20 (Recording).
First, Liebler inquired about the discrepancy between Jones's prior reported January 5 purchase and the actual January 4 booking dates. Id. at 00:42. Jones denied ever claiming a January 5 purchase. Id. Leissner or Watson (the call is not clear which) corroborated Liebler's notes regarding the January 5 representation. Id. at 01:15.
Next, Liebler questioned the variance between Jones's prior January 5 departure report and the records' indication of a January 6 flight. Id. at 05:00. Liebler also asked why Jones would have told her, at 11:30 a.m. on January 6 that he was in Arizona, when his flight did not actually leave until roughly four hours later. Id. Jones claimed he previously said he was "on his way to," not in Arizona and that he left January 5, not that he flew out on January 5. Id. at 05:35. When pressed, Jones explained that, on January 5, he drove to Cincinnati to stay with his cousin in anticipation of the next-day flight. Id. at 06:30.
Progressive's investigation, as recited, provided many self-evident bases for a reasonable good-faith belief in Jones's dishonesty. The Court has noted others. Progressive's documenting of Jones's shifting narrative—from the first interview to the second—was alone sufficient for Progressive to carry its burden here. Certainly, Jones disputes whether he actually changed his story. Yet, for present purposes, such a dispute is (in this case)
In sum, Progressive's investigation unearthed reasonable grounds for its demonstrated honest belief in Jones's suspected mendacity.
Jones thus had an opportunity to rebut Progressive's showing of honest reliance on a specific record. Smith, 155 F.3d at 807 ("[O]nce the employer is able to point to the particularized facts that motivated its decision, the employee has the opportunity to produce `proof to the contrary.'" (citation omitted)). To this end, Jones cites Smith's requirement that the employer's belief not be based on "ignorance and mythology[.]" See DE 64 at 22.
Finally, and most importantly, Jones failed to carry his ultimate burden. Plaintiff needed to produce "sufficient evidence from which the jury could . . . infer that [Progressive] intentionally discriminated against him." Seeger, 681 F.3d at 285. "Here, . . . much of the evidence most damaging to [Jones]'s allegations comes from h[is] own testimony." Hartsel, 87 F.3d at 800. Plaintiff, at deposition, declined to attribute any of Progressive's conduct to his FMLA leave. See DE 60-2 at 22-23 (Dep. at 161-62). Rather, Jones claimed Progressive's actual motives stemmed from disharmonious events and grudges formed years before his 2016 injury. Id. Progressive's past grants of Jones's FMLA leave requests (with no allegation of adverse consequences) further undercut any purported leave-termination linkage. See DE 60-8 (Jones HR Records). Put simply, Jones, himself, evidently does not believe that Progressive fired him as punishment for taking FMLA leave, and the record reveals no proof suggesting otherwise.
Taken as a whole, the record shows that Progressive made a mistake in handling Jones's leave: Company officials did not consider Jones's FMLA status in their decisionmaking. On the one hand, Progressive's failure to adequately account for Jones's FMLA protections is the driving force for a triable interference claim; on the other, this same proof strongly refutes any claimed retaliatory animus. Progressive, for good, recordsubstantiated reasons, believed Jones lied and fired him as a result. For these reasons, and those previously discussed, Progressive is entitled to summary judgment on Jones's retaliation claim, but the interference claim, though abridged, survives.
The "difference between a retaliation and interference theory is that the first requires proof of discriminatory or retaliatory intent while an interference theory requires only proof that the employer denied the employee his or her entitlements under the FMLA." Hon. Charles R. Richey, 1 Manual on Employment Discrimination § 9:41.10 (2019). Progressive ignored the role of the FMLA in this drama. It may thus have interfered, but its ignorance shows no anti-FMLA animus leading to Jones's discharge. That, he alone caused.
Plaintiff's state workers' compensation retaliation
Saunders v. Ford Motor Co., 879 F.3d 742, 752 (6th Cir. 2018) (quoting Colorama, Inc. v. Johnson, 295 S.W.3d 148, 152 (Ky. Ct. App. 2009)). Kentucky applies McDonnell Douglas burden shifting to workers' comp retaliation claims. See Kentucky Dep't of Corr. v. McCullough, 123 S.W.3d 130, 134 (Ky. 2003). The Court, for the reasons discussed in the FMLA context (i.e., material disputes as to the adversity of changed duties and, given temporal proximity, the requisite causal connection), finds that Jones provided sufficient proof to overcome the prima facie hurdle. See, e.g., id. at 135 ("[C]lose temporal proximity alone may be sufficient" proof of a nexus between protected and adverse acts.). However, on the analysis tracking FMLA retaliation, Jones failed to rebut Progressive's substantiated honest belief in his deception or provide any proof of discriminatory animus. This dooms the state law claim. Progressive eagerly sought Jones's return to work; he offers no proof that the discharge flowed from a retaliatory source.
Plaintiff's IIED and NIED claims also fail as a matter of law. Kentucky IIED has four elements:
Osborne v. Payne, 31 S.W.3d 911, 913-14 (Ky. 2000). The tort is only "intended to redress behavior that is truly outrageous, intolerable and which results in bringing one to his knees." Id. at 914. A Kentucky NIED claim first requires proof "of the recognized elements of a common law negligence claim[.]" Osborne v. Keeney, 399 S.W.3d 1, 17 (Ky. 2012) ("Keeney"). That is, a plaintiff must show "that (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached the standard by which his or her duty is measured, and (3) consequent injury." Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). However, when the alleged injury is purely emotional distress, the IIED severity requirement applies. Thus, for both IIED and NIED claims "[d]istress that does not significantly affect the [plaintiff's] everyday life or require significant treatment will not suffice. And a plaintiff claiming emotional distress damages must present expert medical or scientific proof to support the claimed injury or impairment." Keeney, 399 S.W.3d 17-18; see also MacGlashan v. ABS Lincs KY, Inc., 84 F.Supp.3d 595, 605 (W.D. Ky. 2015) (Keeney's expert testimony requirement applies to NIED & IIED.).
Plaintiff presents no affirmative evidence "concerning any severe emotional distress[.]" Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538, 545 (Ky. Ct. App. 2013). This "failure [is] fatal to" Jones's NIED and IIED claims. Id. The lack of distress severity proof is not the only deficiency in these two claims
Jones evidently accepts Progressive's premise (mostly borne out by the Complaint language, see DE 25 at ¶¶ 34-37) that Count V does not include a common law negligence claim.
In relevant part, KRS 337.385 provides:
In turn, KRS 337.055 requires prompt payment of "all wages or salary earned" following termination. Kentucky "wages" include "vested vacation pay[.]" KRS 337.010. However, "[v]acation pay is purely a matter of contract between employer and employee." Berrier v. Bizer, 57 S.W.3d 271, 281 (Ky. 2001).
Progressive's "Leave Specialist" Kemp, by sworn declaration, states that, based on Defendant's records and consistent with Defendant's Earned Time Benefit ("ETB") policy, Jones was paid all "earned and accrued time off." DE 60-24 (Kemp Declaration). Specifically, Kemp avers that Progressive paid Jones $13,570.14 for 366.57 earned vacation hours. Id. at ¶ 4. Based on Kemp's statement, Progressive seeks summary judgment on Count VIII. DE 61-1 at 33.
Jones claims that his deposition testimony precludes summary judgment on this issue. DE 64 at 32. The most Jones-favorable reading salvageable from the relevant transcript segment is a halting contention that Jones believes Progressive owes him "60 or 70 hours" of vacation time. DE 64-17 at 4 (Dep. at 186-87). For several reasons and on the full record, the Court sees no triable issue as to the wage claim.
First, Jones (as the Court reads the transcript) does not claim that Progressive improperly deducted vacation time. See DE 64-17 at 4 (Dep. at 187: "[O]ut of my vacation time of 400 plus hours they took out so many hours. What for, I don't know."); id. (Dep. at 188: Jones, when asked what compensation he felt he was owed, stated that he wanted to "figure out . . . what" the basis was for the reductions). Such ambiguity in the foundational evidentiary predicate places the claim on a dicey perch.
Second, though Jones's briefing more firmly claims improper reductions, he fails to explain why he believed that Progressive owed him accrued vacation wages for 60, 70, or any number of hours.
Finally, the Court notes that Plaintiff (during discovery) disclosed and Defendant (with a prior motion) filed documentation regarding Jones's ETB accrual during the relevant period. DE 55-3 (Jones e-mailed Pay Statements).
Jones's own pay records corroborate Kemp's claim that Progressive followed its vacation-time policies, including full post-termination compensation for any ETB balance. As stated, the Court questions whether Plaintiff's equivocal deposition statements amount to a contrary allegation. Yet even if they do, when, as here, a movant provides a personnel department member's sworn declaration regarding employment records, a plaintiff's "conclusory allegations unsupported by specific evidence are insufficient to establish a genuine issue of material fact." Hinson v. Tecumseh Prod. Co., 234 F.3d 1268 (table), 2000 WL 1597947 (6th Cir. 2000). Jones brings nothing more to bear. Accordingly, Defendant is entitled to summary judgment on the wage claim.
The same analysis dooms Jones's breach of contract
Jones's contractual interference claim is also deficient. "Kentucky law follows the Restatement (Second) of Torts for tortious interference claims." Mountain Motorsports Paving & Const. LLC v. Yamaha Motor Corp., U.S.A., No. 14-CV-76-ART, 2014 WL 5341865, at *7 (E.D. Ky. Oct. 20, 2014) (citing Carmichael-Lynch-Nolan Adver. Agency, Inc. v. Bennett & Assocs., Inc., 561 S.W.2d 99, 102 (Ky. Ct. App. 1977) (interference with existing contract rights)). The claim requires: "(1) the existence of a contract; (2) [Progressive]'s knowledge of this contract; (3) that [Progressive] intended to cause its breach; (4) its conduct caused the breach; (5) this breach resulted in damages to [Jones]; and (6) [Progressive] had no privilege or justification to excuse its conduct." Rich & Rich P'ship v. Poetman Records USA, Inc., 714 F.Supp.2d 657, 669 (E.D. Ky. 2010). Jones bases his claim on Progressive's alleged interference with workers' compensation and disability benefits. See DE 64 at 33.
Progressive seeks summary judgment based on Plaintiff's failure to produce or identify any breached contract. See DE 61-1 at 35.
Kentucky's wrongful use of administrative proceedings tort is a species of malicious prosecution. See Martin v. O'Daniel, 507 S.W.3d 1, 10 (Ky. 2016) (describing the Restatement (Second) of Torts § 674 "Wrongful Use of Civil Proceedings" as explaining "malicious prosecution claims arising out of civil litigation"). A successful plaintiff must prove that:
Id. at 11-12. Probable cause "exists where the person who initiates civil proceedings `reasonably believes in the existence of the facts upon which the claim is based, and . . . that under those facts the claim may be valid under the applicable law.'" Prewitt v. Sexton, 777 S.W.2d 891, 894 (Ky. 1989) (quoting Restatement § 675). The existence of probable cause is a legal "question for the court[.]" Id. (emphasis in original). Because the tort is disfavored, a plaintiff must "strictly comply with the prerequisites of maintaining an action." Id. at 895 (citation omitted).
Plaintiff contends that Progressive's submissions to Kentucky's Division of Unemployment Insurance (the "Division") regarding its explanation for the Jones termination effectively "continued" the unemployment proceeding against him. See DE 64 at 29. The Court has serious doubts about this proposition. Generally, unemployment proceedings are a poor fit for the wrongful use of administrative proceedings rubric. The employee (not the employer) must, typically, initiate the process. See KRS 341.350 ("An unemployed worker shall . . . be eligible for benefits . . . only if: (1) He or she has made a claim for benefits."). But see 787 KAR 1:090 at § 4(1) ("An employer may file a claim on behalf of an unemployed worker if: (a) The worker has definite recall rights within four (4) calendar weeks[.]"). Further, an unemployment proceeding is not "an administrative disciplinary proceeding against the plaintiff[.]" Martin, 507 S.W.3d at 10. Rather, the proceedings concern benefits accruing or owed to a claimant. Finally, when an employee is fired "for a reason other than lack of work," state regulations
Case-specific reasons also undercut Jones's continuation claim. For instance, Progressive, itself, did not submit anything to the Division. A "Third Party Administrator" filed the at-issue report. See DE 60-17 at 1 (Unemployment Submission). [Jones offers no agency theory or proof to justify imputing the administrator's conduct to Progressive.] Jones (not Progressive) initiated the appeal and thus "continued" the proceedings. See DE 64-27 at 1 (Referee Decision). Progressive, though later appearing by counsel, presented no evidence. See id. at 2. In short, the Court sees no record proof that Progressive "continued" any "disciplinary proceeding against" Jones. Given the tort's disfavored status and the Commonwealth's strict compliance requirement, the Court finds that these discrepancies, between case facts and claim elements, justify dismissal.
Finally, even if Progressive had "continued" proceedings against Jones, the Court, for the reasons discussed in the retaliation analysis, finds that Defendant had probable cause to do so. That is, Progressive, based on specific facts and after a thorough investigation, "reasonably believed" that Jones lied and that such dishonesty provided good cause to terminate him. Prewitt, 777 S.W.2d at 894; see also KRS 341.370(1) ("A worker shall be disqualified from receiving benefits for the duration of any period of unemployment with respect to which: . . . (b) He has been discharged for misconduct or dishonesty connected with his most recent work."). The Court finds that Jones, as a matter of law, failed to show a lack of probable cause. Accordingly, and for each of these reasons, the Court dismisses the wrongful use of proceedings claim.
In the Commonwealth, "negligence per se is merely a negligent claim with a statutory standard of care substituted for the common law standard of care." Pile v. City of Brandenburg, 215 S.W.3d 36, 41 (Ky. 2006) (citation omitted). Kentucky has codified the doctrine. See KRS 446.070. The statute:
Hickey v. Gen. Elec. Co., 539 S.W.3d 19, 23-24 (Ky. 2018) (emphasis in original) (quoting Vanhook v. Somerset Health Facilities, LP, 67 F.Supp.3d 810, 819 (E.D. Ky. 2014)). The state's highest court recently held that a KRS 446.070 claim premised on "an alleged violation of KRS 341.990(6)(a) is cognizable under Kentucky law." Id. at 25. Thus, the Court turns to the duty-setting provision.
Per KRS 341.990, a person must not "knowingly" make a "false statement or representation of a material fact" or fail "to disclose [a] material fact to prevent or reduce the payment of benefits to any worker entitled thereto[.]" KRS 341.990(6)(a). Plaintiff claims that "Progressive challenged Mr. Jones'[s] entitlement to benefits when it had no basis to do so." DE 64 at 32. Progressive's only arguable "challenge[,]" to Jones's unemployment benefits, as a regulatory matter, was the previously described third-party (and statutorily-mandated) submission of its explanation for Jones's termination. Yet, as explained, Jones presents no evidence sufficient for a reasonable juror to find that Progressive's conduct issued from anything other than an honest belief in a legitimate termination basis. The at-issue submission merely explained Progressive's rationale and provided supporting documentation. Again, an employee that "has been discharged for misconduct or dishonesty connected with his most recent work" is disqualified from receiving benefits. KRS 341.370(1). Given Progressive's unrebutted honest belief in Jones's dishonesty, Plaintiff failed to show that Progressive knowingly sought to "prevent or reduce the payment of benefits to any worker
Jones acknowledges that a Hickey claim hangs on "an employer's bad faith opposition to" an employee's claim. 539 S.W.3d at 23. Yet, Jones fails to anchor his claim with proof of bad faith. Indeed, the full record shows that Progressive conducted a good faith and thorough investigation, terminated Jones based on its resulting findings, and, per state law, reported the same to the Division.
Jones claims that "Kentucky law is quite clear that punitive damages must be pl[eaded] as a separate claim." DE 64 at 34. The Court disagrees.
Based on the Complaint language, Jones could be trying to assert a common law gross negligence claim. See DE 25 at ¶ 74. Such a claim, if successful, would permit a punitive damages
For the reasons, to the extent, and on the terms stated, the Court
Critically, Progressive was only able to effectively contact Jones during his leave on a few occasions. Compare DE 64 (Jones listing five Progressive communications during his leave: on Jan. 2, 3, 5 (twice), and 6, 2017), with DE 64-20 at 02:30 (Jones, on Jan. 17, 2017, denying receipt of Progressive communications on Jan. 5, 2017). All but one of Progressive's contacts related to requests for him to return on light duty, and the FMLA clearly allows contact about such offers. See, e.g., 29 C.F.R. § 825.207 ("[T]he employee may decline the employer's offer of a light duty job."). Ultimately, Jones provides no evidence of any Progressive contacts falling outside the authorized boundaries for mid-leave communications. See Tilley v. Kalamazoo Cty. Rd. Comm'n, 654 F. App'x 675, 680 (6th Cir. 2016) (granting summary judgment where "de minimis contact did little, if anything, to disrupt [employee]'s FMLA leave and did not discourage [employee] from taking FMLA leave").
Jasper v. Blair, 492 S.W.3d 579, 583 (Ky. App. 2016); Ky. Ass'n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 632 n.12 (Ky. 2005). Plaintiff failed to show a triable issue as to any property of Jones Progressive improperly holds. Thus, the claim fails on multiple elements.
McMaster v. Cabinet for Human Res., 824 F.2d 518, 521-22 (6th Cir. 1987). So too here. Jones's real dispute is with Progressive firing him. He can and, here, does challenge that conduct directly. The Court declines a ruling that would allow any plaintiff disputing his discharge to multiply his claims simply by seeking unemployment. Under Jones's theory, an employer with a good-faith dispute regarding a discharge would be whipsawed between the unlawful use of proceedings tort and state-mandated reporting. Consider this: to avoid a wrongful use of proceedings claim and, given the state requirement, an employer would have to either (A) report a non-misconduct termination basis (as Jones evidently believes Progressive should have done)—thereby bolstering any direct challenge to the discharge—or (B) keep silent and face a state misdemeanor charge. See Christian v. Wal-Mart Stores, Inc., No. 07-14482, 2009 WL 349693, at *7 (E.D. Mich. Feb. 10, 2009) ("Contradictions or inconsistencies in an employer's explanations for termination can support a finding of pretext."); KRS 341.990(6)(b) ("Any person who willfully fails or refuses to furnish any reports required . . . shall be guilty of a Class B misdemeanor."). The Court rejects the regime Jones proposes.
