United States District Court, D. Arizona
ORDER
BRIDGET S. BADE, UNITED STATES MAGISTRATE JUDGE
Defendant
Freedom Financial Network, LLC d/b/a Freedom Debt Relief
(“FFN” or “Defendant”), has filed a
motion for summary judgment on Plaintiff's remaining
claims in the Second Amended Complaint (the
“SAC”).[1] (Doc. 148.)[2] The remaining claims are
Plaintiff's disparate treatment claim under the American
with Disabilities Act (“ADA”), alleged in Count
Three, and his constructive discharge claim alleged in Count
Five. (See 17-2647 Docs. 26, 33; Doc. 65 at 24.) The
motion is fully briefed. (See Docs. 149, 157, 158,
159, 161, 164.) As set forth below, the Court grants the
motion.
I.
Factual Background
Plaintiff's
claims are based on his employment at FFN as a consumer debt
relief account executive from October 19, 2015 until June 29,
2017. FFN provides various financial services through its
subsidiaries, including debt resolution. (DSOF ¶
1.)[3]
FFN employs Account Executives (“AEs”) to obtain
customers for its debt reduction program. (DSOF ¶ 5.) On
October 19, 2015, FFN hired Plaintiff as an AE. (DSOF
¶¶ 4; PCSOF ¶ 4.)[4] Plaintiff was paid an hourly
wage plus commission based on the number of debt relief
contracts he generated. (DSOF ¶ 4; PCSOF ¶ 4.) As
set forth below, Plaintiff alleges that based on his
disability, FFN took various actions that impeded his sales
and, eventually, caused him to leave his job.
In
October 2015, Plaintiff met with FFN's Senior Human
Resources Business Partner Nicole Durkin regarding his
benefits elections. (DSOF ¶¶ 15-16; Durkin Decl. at
¶ 4.)[5] Plaintiff told Durkin he wanted to enroll
in the medical insurance plan with the lowest monthly
employee premium. (Durkin Decl. at ¶ 4; PCSOF ¶ 16
(citing Powell Decl. at ¶ 12).) Plaintiff alleges that
in January 2016, he discovered that FFN had changed his
benefit plan when he filled a prescription and it cost him
over $200, instead of $10. (PCSOF ¶ 20; Powell Depo at
110-13.) Plaintiff states that when he asked Durkin about
this issue, she told Plaintiff he could not change his health
insurance plan until open enrollment or unless he experienced
a life event. (Powell Depo. at 113.)
Plaintiff
and the other AEs were assigned sales leads through FFN's
lead management software.[6] (DSOF ¶ 77.) The software system
uses scoring and assignment algorithms to allocate leads
based on a prospective client's reported needs and the
AE's lead queue. (DSOF ¶ 78.) The scoring algorithm
first assigns each prospective client with a score based on
factors unique to that client, and then matches the
prospective client with a group of AEs (or a
“tier”). (DSOF ¶¶ 79-82.) Each AE on
the first tier receives a popup window on their computer
screen with the lead's information. (Id. at
¶ 81.) If the lead is not accepted by any AE within six
seconds, the lead passes to the next tier, or tiers, until
the lead is claimed. (DSOF ¶ 81.) Neither FFN's
management team nor members of its Human Resources Department
has access to or can manipulate FFN's lead generation
data or its software's assignment algorithms. (DSOF
¶ 84; Gallegos Decl. at ¶ 13.)[7]
During
Plaintiff's first three months of employment with FFN he
was promoted and received a raise. (DSOF ¶ 32.) However,
on March 31, 2016, FFN gave Plaintiff a verbal warning for
unprofessional communication with a co-worker in violation of
FFN's Business Ethics and Conduct policy. (DSOF
¶¶ 35-38; DSOF, Ex. 10.) On April 28, 2016, FFN
received a Better Business Bureau (“BBB”)
complaint from a prospective client alleging that, after she
told Plaintiff she was not interested in FFN's program,
he sent her an email stating, “unfortunately you will
never find any help and will be stuck in debt and continue
wasting money [sic] Good luck.”[8] (DSOF ¶¶ 38-41.)
FFN issued Plaintiff a written warning for violating
FFN's policy on “business ethics and
conduct.” (DSOF, Ex. 12.)
In
April or May 2016, Plaintiff disclosed to Tom Carr, his team
lead, that he took prescription medication for chronic pain.
(DSOF ¶ 68; Carr Decl. at ¶ 6.)[9] Carr asserts that
he did not share this information with anyone at FFN.
(Id.) Plaintiff alleges that after he disclosed this
information co-workers started asking if he would sell his
pain pills, but he does not cite to any supporting evidence.
(Doc. 159 at 4.)
During
June 2016, Plaintiff closed fifteen new client enrollments.
(DSOF ¶ 46; DSOF, Ex. 13.) During the preceding five
months Plaintiff had closed an average of thirty- nine
enrollments per month. (DSOF ¶ 46.) Around June 2016,
Plaintiff gained sole custody of his two young children and
requested modification of his work schedule. (DSOF ¶
70.) FFN granted Plaintiff's request. (Id.;
Durkin Decl. at ¶¶ 5-6.)
Around
July 2016, Plaintiff met with Durkin and stated that he was
“stressed” and having some “personal
issues.” (DSOF ¶ 71; Durkin Decl. at ¶ 7.)
Plaintiff became upset and started crying while talking to
Durkin. (Id.) Durkin gave Plaintiff information
about FFN's employee assistance program and he was
permitted to take a week off work. (Id.) Plaintiff
returned to work and, in August 2016, he closed his
second-highest number of contracts. (Durkin Decl. at ¶
72, DSOF, Ex. 13; PSSOF ¶ 10.) Plaintiff alleges that
around that same time he noticed a camera had been installed
at his work station. (17-2647 Doc. 26 at ¶ 40.)
Plaintiff, however, admits that he does not have any evidence
to support this allegation. (Powell Depo at 29-30.)
In
August 2016, Plaintiff's team leader Carr was promoted to
sales manager and Plaintiff was transferred to a team lead by
Ben Whitlach. (DSOF ¶ 12; PCSOF ¶ 12.) In October
2016, Plaintiff and Whitlach had a confrontation about
Plaintiff's transfer rate.[10](DSOF ¶ 47; Powell Depo.
at 196-97; DSOF, Ex. 14.) Plaintiff alleged that his emails
were not sending, he had issues transferring clients, and the
“missed transfers” prevented him from earning
weekly performance bonuses. (PSSOF ¶ 12; Powell Depo. at
191-95, 217-21.) Plaintiff complained to management that his
leads were not being tracked properly. (PSSOF ¶ 12; DSOF
¶ 49.) Plaintiff alleges after he told Carr that he took
prescription pain medication, “pop ups” appeared
on his computer that prevented him from transferring leads
and his performance declined. (PSSOF ¶¶ 16, 46;
Powell Decl. ¶¶ 16, 17, 18; Doc. 161-2 at 25.)
Plaintiff alleges that management would tell him the issue
was fixed, but the issue would return. (Powell Depo. at 224.)
Plaintiff alleges that “Brian in IT” confirmed
that Freedom Plus “pop ups” were appearing on
Plaintiff's computer and told Plaintiff that he must have
been placed in that queue “by hand.” (Powell
Decl. ¶ 16; Doc. 161-2 at 24-32 [Decl. Ex. 12].)
At
Plaintiff's request, FFN transferred him to a team lead
by Ron Suan. (DSOF ¶ 48; Powell Depo. at 196-97; DSOF,
Ex. 14.) After he joined Suan's team, Plaintiff arrived
late to work several times between October and December 2016
and was absent several times in December 2016. (DSOF ¶
75; DSOF, Ex. 20.) Plaintiff gave FFN a note from Agave
Pediatrics indicating that he was absent in mid-December due
to his child's illness. (DSOF ¶ 76; DSOF, Ex. 21.)
Plaintiff alleges that FFN was manipulating his sales leads
because Suan removed a lead from his queue on one occasion.
(Powell Depo at 183-85.) However, Plaintiff concedes that it
was FFN's policy to remove leads from an AE's queue
if the employee was out of the office so the lead could be
contacted in a timely manner. (Powell Depo at 183-85.)
Between
July and December 2016, Plaintiff's client enrollments
declined to an average of about twenty-eight enrollments per
month. (DSOF ¶ 49.) On February 7, 2017, Plaintiff met
with Durkin.[11] (DSOF ¶ 89; Durkin Decl. at ¶
11.) Plaintiff complained that FFN was assigning him
“false” leads created by FFN to “get him
out” of the company. (DSOF ¶ 89; DSOF, Ex. 23;
Powell Depo. at 239.) Plaintiff alleged that FFN's
quality assurance representatives called him and posed as
clients to get him to “blow up on a call” and
that FFN put a “bounty” on him, which included a
reward if an employee could get him to “blow up on a
call.” (Powell Depo. at 211, 213, 217, 296-97.)
Plaintiff attributed FFN's purported conduct to his
tattoos, his status as a single father, and a retaliatory
campaign stemming from the BBB complaint filed in May 2016.
(DSOF ¶ 90; DSOF, Ex. 23; Powell Depo. at 230, 245-46.)
Durkin
investigated Plaintiff's allegations, spoke with
Plaintiff's supervisor about his sales performance, and
reviewed Plaintiff's time cards, his weekly lead
assignments, and closure rates. (DSOF ¶ 91; Durkin Decl.
¶ 13.) Plaintiff's time cards showed that he had
called off from work and left work early multiple times in
January 2017. (Durkin Decl. at ¶ 13; DSOF, Ex. 24.)
Additionally, records reflected that when Plaintiff did not
work a full schedule, he accepted fewer leads and generated
fewer client contracts. (DSOF ¶ 92; Durkin Decl.¶
14.) When Plaintiff worked a full schedule, his sales closure
rate was consistent with his prior production. (Durkin Decl.
at ¶ 14.) Durkin also reviewed lead management data
going back three months with Gallegos. (DSOF ¶ 93;
Durkin Decl. ¶ 15.) After her investigation, Durkin
concluded that she could not substantiate Plaintiff's
allegations of “false” leads or any retaliatory
conduct by FFN towards Plaintiff. (DSOF ¶ 94; Durkin
Decl. at ¶ 16.) On February 16, 2017, Durkin met with
Plaintiff and shared the results of her investigation and
encouraged Plaintiff to accept his supervisors' feedback
about how to improve his sales communication. (DSOF ¶
95; DSOF, Ex. 25; Durkin Decl. at ¶ 18.) Plaintiff
stated that he did not have performance issues and asserted
that FFN was assigning him “false” leads. (DSOF
at ¶ 96; DSOF, Ex. 25; Durkin Decl. at ¶ 19.)
On
February 21, 2017, Plaintiff filed a charge of discrimination
with the EEOC (the “EEOC Charge”). (DSOF, Ex.
26.) Plaintiff claimed that on July 1, 2016, he informed
Durkin about his “disability” and that since then
he had been “denied the same quality of leads” as
his peers, experienced a decline in his pay, and been placed
on a “different tier level.” (Id.) The
next day, Plaintiff asked Durkin for information about his
eligibility for FMLA leave, which she provided. (DSOF ¶
99; PCSOF ¶ 99; Powell Depo. at 256-57.)
On
February 28, 2017, Suan and Carr met with Plaintiff and
provided feedback on his sales-call communications skills.
(DSOF at ¶ 102; Carr Decl. at ¶ 30-33; Powell Depo.
at 283-85.) Plaintiff claimed that FFN was creating
“fake” sales leads for him. (Powell Depo. at 283;
Carr Decl. at ¶ 33.) He also stated that his sales pitch
was “perfect” and that his attendance was not
affecting his performance. (Carr Decl. at ¶ 33.)
Plaintiff asserts that Suan and Carr did not address his
“concerns” but told him to “go somewhere
else to work.” (PCSOF ¶ 102.)
On
March 9, 2017, Plaintiff informed Durkin that he was
experiencing anxiety due to his meeting with Suan and Carr.
(DSOF ¶ 103; DSOF Exs. 7, 30; Powell Depo. at 303-05;
PSSOF ¶ 24.) Plaintiff also stated that he had been
seeing a therapist for anxiety, which he had been
experiencing due to “discrimination” over the
past several months. (DSOF, Ex. 30.) At Plaintiff's
request, FFN reassigned Plaintiff to a sales team with team
lead Bob Hui. (DSOF ¶ 14; Powell Depo. 342.)
On
March 20, 2017, FFN received a certification of serious
health condition from Plaintiff's healthcare provider
stating that Plaintiff had an anxiety disorder that had begun
“approximately 3/15/2017.” (DSOF ¶ 104;
DSOF, Ex. 31.) The healthcare provider recommended at
twelve-week leave of absence. (DSOF, Ex. 31.) Plaintiff
requested and was granted a leave of absence from March 12 to
June 12, 2017. (DSOF ¶¶ 104-06; Powell Depo. at
257, 260, 308, 311; PSSOF ¶ 24.) Powell returned to work
on June 13, 2017, after providing a note from his healthcare
provider that allowed him to return to work with no
restrictions. (DSOF ¶ 106; DSOF, Ex. 32.)
On June
28, 2017, Mira Makarem sent an email to the sales teams
stating that FFN was no longer accepting time-off requests
for July 3, 2017 because too many employees had requested
that day off. (DSOF ¶ 107; DSOF, Ex. 33.) Plaintiff
claims that he did not see that email. (Powell Depo at 310.)
On June 29, 2017, Plaintiff submitted a request to take July
3, 2017 off because his children's daycare would be
closed that day. (DSOF ¶ 108; DSOF, Ex. 33; Powell Depo.
at 311-14; PSSOF ¶ 30.) The same day, Ron Rinehart
denied Plaintiff's request. (DSOF, Ex. 33.) He explained
that FFN was no longer accepting time-off requests for that
day and stated that he had also denied requests from other
employees. (DSOF ¶ 109; DSOF, Ex. 33.)
On June
29, 2017, Plaintiff submitted a handwritten letter stating
that he was resigning due to FFN's discrimination and a
hostile work environment. (DSOF ¶ 110; DSOF, Ex. 34.)
Plaintiff also emailed his resignation to Rinehart and copied
all employees and teams and stated that he was resigning due
to discrimination, harassment, and constructive discharge.
(DSOF, Ex. 34.)
II.
Summary Judgment Standard
A party
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Summary judgment is appropriate if
the evidence, viewed in the light most favorable to the
nonmoving party, shows “that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Conclusory allegations contained in the pleadings, which are
unsupported by factual evidence, are insufficient to defeat a
motion for summary judgment. Lucas Automotive Eng'g,
Inc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228, 1237
(9th Cir. 1998). Similarly, an affidavit that recites
conclusory allegations will not defeat summary judgment.
See Lujan v. Nat'l Wildlife Fed'n, 497 U.S.
871, 888-89 (1990); see also Warren v. City of
Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995) (while
plaintiff's burden at the summary judgment stage is not
overly burdensome, plaintiff cannot merely rely on
generalizations). Only disputes over facts that might affect
the outcome of the suit will preclude the entry of summary
judgment, and the disputed evidence must be “such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The Court considers Defendant's
motion for summary judgment under these standards.
III.
ADA Disparate Treatment Claim
In
Count Three of the SAC, Plaintiff alleges a disparate
treatment claim under the ADA. (17-2627 Doc. 26.) Plaintiff
claims that his sales dropped after he disclosed his
disability to his supervisors and that FFN took various
adverse actions to hinder his performance. (Id.)
A.
Elements of Prima Facie Case and the Burden ...