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Diamond v. American Family Mutual Insurance Co.

United States District Court, W.D. Missouri, Western Division

November 9, 2017

DAVID A DIAMOND, Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          ROSEANN A. KETCHMARK, JUDGE.

         Now before the Court is Defendant's Motion for Summary Judgment on Plaintiff's claims arising under the Family and Medical Leave Act (“FMLA”). (Doc. 24.) Plaintiff filed opposition suggestions (doc. 30), and Defendant filed reply suggestions (doc. 33). After careful consideration, the motion is DENIED.

         Factual Background

         With the exception of a break in employment beginning in 2002 and ending in early 2003, Plaintiff was employed by Defendant from January 1999 until his discharge in February 2015. (Doc. 42 at ¶¶ 1, 2, 13.) While Plaintiff was employed by Defendant, he took FMLA leave on three occasions: prior to 2006; August 31, 2011 through December 19, 2011; and October 15, 2013 through November 6, 2013. (Id. at ¶¶ 18-21.) Defendant approved each of Plaintiff's requests for FMLA leave and reinstated him to the same position with the same salary and benefits upon his return from FMLA leave. (Id. at ¶ 22.)

         On March 24, 2012, Plaintiff was hired by Ray Caudill to transfer to a Senior Catastrophe Claims Adjustor position. (Id. at ¶ 10.) Caudill was Plaintiff's manager from March 2012 until his discharge. (Id. at ¶ 28.) In this role, Plaintiff was responsible for processing catastrophic property claims for Defendant's customers. (Id. at ¶ 11.) Plaintiff's job duties included making many telephone calls throughout the day to insureds, witnesses, repair contractors, agents, and others. (Id. at ¶ 12.) Plaintiff made notes of each call in the Defendant's computer files. (Id.) Plaintiff remained in this position until his discharge in February 2015. (Id. at ¶ 13.)

         On February 12, 2015, Caudill met with and issued Plaintiff his 2014 Performance Review. (Id. at ¶ 30.) Caudill's comments in the 2014 Performance Review were positive, and Caudill wrote that he had seen growth and improvement in many areas over the last year. (Id. at ¶ 32.) In his 2014 Performance Review, Plaintiff was rated “Above Target” for one measure and “On Target” for all other measures. (Id. at ¶ 33.) Plaintiff testified that, during his performance review on February 12, 2015, Plaintiff told Caudill he intended to arrange for upcoming FMLA leave, and Caudill admits that Plaintiff told him he was planning to arrange for FMLA leave but that he does not remember the timing of that conversation in relation to Plaintiff's performance review. (Doc. 34 at ¶ 161.)

         On Friday, February 13, 2015, a report of phone calls made to or from the phone on Plaintiff's desk was prepared for Caudill to analyze. (Doc. 42 at ¶ 35.) Caudill testified that he requested the records because he received complaints, during January and February 2015, from insureds and agents who reported they had not received follow-up calls or call-backs from Plaintiff on their claims. (Doc. 26 at ¶ 58.) Caudill pulled Defendant's claim files in which Plaintiff had written he called the insureds and compared Plaintiff's claim file entries to a 30-day phone report from his desk telephone. (Doc. 42 at ¶ 36.) Caudill has never identified to Plaintiff the customers that allegedly complained of not receiving a call and has never shown Plaintiff any notes of such complaints. (Doc. 34 at ¶ 179.) Plaintiff signed his 2014 performance review on February 16, 2015. (Doc. 42 at ¶ 34.) On February 20, 2015, a final paycheck was requested from the payroll department. (Doc. 34 at ¶ 167.) On the morning of February 24, 2015, Plaintiff was at work when he received a call on his cell phone that Caudill wanted to meet with him; Caudill met with Plaintiff; and Caudill informed Plaintiff that he was being terminated for falsifying company records. (Doc. 42 at ¶¶ 37 - 39.)

         The parties dispute the following: whether Caudill made mocking and disparaging comments about Plaintiff's FMLA leave when Plaintiff returned from FMLA leave in 2013; whether, from 2013 to his termination, Plaintiff was assigned a heavier workload than other adjustors and senior adjustors; whether Plaintiff was denied help with his files when such help was provided to other adjustors; whether it was common knowledge among the employees in Plaintiff's unit that his computer was often down; whether a senior adjuster would ever use a phone other than the one on his or her desk for making business phone calls; and whether Plaintiff offered any explanation for the discrepancy between his file notes and the phone report from his desk telephone.

         Discussion

         “The 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 party who moves for summary judgment bears the burden of showing that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). An issue of fact is only genuine if it has a real basis in the record, and is material if it “might affect the outcome of the suit under the governing law.” Id. at 248. In applying this standard, the Court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985). A party opposing a motion for summary judgment may not simply deny the allegations, but must point to evidence in the record demonstrating the existence of a factual dispute. Fed.R.Civ.P. 56(c)(1); Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909-10 (8th Cir. 2010).

         The FMLA “entitles an employee to twelve weeks of leave from work during any twelvemonth period if the employee meets certain statutory requirements.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012). Two subsections of the FMLA prohibit an employer's ability to undermine an employee's permitted leave. Id. Section 2615(a)(1) “makes it unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise rights provided under the FMLA, ” and section 2615(a)(2) “makes it unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the FMLA.” Brown v. Diversified Distribution Sys., LLC, 801 F.3d 901, 907 (8th Cir. 2015) (quotations and citations omitted). The Eighth Circuit has recognized three different FLMA claims from these two subsections: (1) entitlement, (2) discrimination, and (3) retaliation. Pulczinski, 691 F.3d at 1005.

         I. FMLA Claims

         As mentioned above, the Eighth Circuit recognizes three types of FMLA claims: (1) entitlement, (2) discrimination, and (3) retaliation. Pulczinski, 691 F.3d at 1005-1006. As recently identified in Teetor v. Rock-Tenn Services, Inc.:

“An entitlement claim arises under § 2615(a)(1) when ‘an employer refuses to authorize leave under the FMLA or takes other action to avoid responsibilities under the Act.'” Id. (quoting Pulczinski, 691 F.3d at 1005). In an entitlement claim, previously called an interference claim, an employee must show only that he or she was entitled to the ...

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