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Powell v. Freedom Financial Network

United States District Court, D. Arizona

March 11, 2019

Marcus Powell, Plaintiff,
v.
Freedom Financial Network, Defendant.

          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 ...


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