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Suitor v. Charter Communications, LLC

United States District Court, E.D. Michigan, Northern Division

May 2, 2018




         On April 11, 2017, Plaintiff Ronald Suitor filed a complaint against Defendant Charter Communications, LLC. ECF No. 1. Suitor alleges that Charter fired him in retaliation for taking medical leave, thus violating the Family and Medical Leave Act, 29 U.S.C. § 2615. On January 9, 2018, Charter filed a motion for summary judgment. On March 27, 2018, Charter also filed a motion in limine to exclude certain evidence at trial and objections to certain of Suitor's pretrial disclosures. ECF Nos. 16, 17. For the following reasons, Charter's motion for summary judgment will be granted, and Charter's motion in limine will be denied as moot.



         Plaintiff Ronald Suitor was hired by Defendant Charter Communications in July 2014 to work as a direct sales representative in Charter's Bay City branch. Suitor Dep. at 15-17, ECF No. 10. As a direct sales representative, Suitor was provided “address leads” (“houses that either didn't have Charter services or were existing internet-only customer[s]”) and was directed to persuade those individuals to purchase Charter's “triple-play” service, which bundles television, internet, and phone services. Id. at 19. Direct sales representatives receive a yearly salary of $19, 200.00. Offer Letter at 1, ECF No. 12, Ex. 2. However, sales representatives also receive commission compensation, and commissions typically represent a large majority of yearly compensation for direct sales representatives. When Suitor was originally hired by Charter, he received an offer letter which estimated that his “annual, variable commission target” would result in approximately $54, 195.48 in commissions. Id.

         At Charter, that commission target works in conjunction with monthly sales quotas. Those quotas consisted of two thresholds. The minimum threshold is 10 triple plays per month. Suitor Dep. at 21.[1] The monthly goal is twenty-three triple plays per month. Id. If a direct sales representative fails to reach the minimum threshold, they do not receive a paycheck for that month. Brackett Dep. at 5, ECF No. 10.

         When a sales representative takes leave, their monthly quotas are reduced pursuant to an undisclosed Charter algorithm. Id. at 5-8. Terry Brackett, a supervisor for the Suitor and other sales representatives during the relevant period of time, indicated that the minimum sales threshold would typically drop by two for every five business days the direct sales representative was on leave. Id. Thus, if a sales representative takes two weeks of leave, their minimum sales threshold for that month drops to six. Id. at 7-8. Because the adjustment to the minimum threshold is calculated pursuant to an algorithm, Charter management is not involved in any modifications based on leave. Id. at 8.

         Supervisors like Terry Brackett also receive commission bonuses based on the number of sales made by the employees they supervise. Id. at 11-12. Mr. Brackett indicated in his deposition that the threshold for his bonus was not reduced when his employees took leave. Id. Thus, if a sales representative takes leave, their supervisor is less likely to receive a commission bonus. Id.


         During his time with Charter, Suitor experienced certain recurring challenges in his personal life. Suitor requested leave several times in response to those challenges.


         October 26, 2015, Suitor sent Shaun Harton (his then-supervisor) an email regarding a possible leave of absence. Oct. 26, 2015, Email, ECF No. 10, Ex. 7. Suitor indicated his “desire for a leave of absence for about 3 months of winter.” Id. He explained that his wife suffered from a variety of medical conditions and that wintering in Florida was “an effective and proven successful therapy.” Id. In his deposition, Suitor provided further detail. Suitor Dep. at 87. Suitor's wife experiences several “[p]hysical and mental disabilities” and, during the time in question, was providing primary caregiving to Suitor's aging father. Id. at 8, 87. In mid-November of 2015, Suitor's wife had “pretty much . . . wore out” and told Suitor that she would “leave if [he] didn't do something to relieve her.” Id. at 87. In response, Suitor submitted a formal leave request. Id.

         After Suitor submitted the request, there was communication between Mr. Horton, Scott Zybtowski (Mr. Horton's supervisor), Mariaelena Cavazos (a human resources representative), and Suitor. See Nov. 10, 2015, Email Chain, ECF No. 12, Ex. 4. Suitor reiterated that he needed ninety days of leave to address his wife's “documented medical issues and mental health issues that require[d] her to a [sic] warmer climate in the winter months.” Nov. 10, 2015, Email Chain at I. Initially, Suitor requested personal, non-medical leave. Id. at 2-3. The leave request form Suitor submitted included a space requesting FMLA leave, but Suitor indicated that he intentionally decided against requesting FMLA leave because his wife was uncomfortable disclosing the nature of her medical issues. Id. at 1. Ms. Cavazos asked whether Suitor was “possibly requesting FMLA” and informed Suitor that Charter “seldom authorize[s]” personal leaves of absence and that such leaves are limited to thirty days. Nov. 10, 2015, Email Chain at 1-2. In response, Suitor indicated that he would speak to his wife about the leave policy and consider requesting FMLA leave. Id. at 1.

         On December 10 and 11, 2015, Suitor submitted two additional leave requests. In the first leave request, submitted on December 10, Suitor sought personal, non-medical leave from January II, 2016, to February 9, 2016. See Dec. 10, 2015, Leave Request at 1, ECF No. 12, Ex. 6. In the December 11, 2015, leave request, Suitor sought FMLA leave from January 11, 2016, to March 21, 2016. See Dec. 11, 2016, Leave Request, ECF No. 12, Ex. 9. One of the reasons that Suitor was seeking FMLA leave was because his father was scheduled for cancer-related surgery on January 11, 2016. Suitor Dep. at 96-97.

         It is less than clear why Suitor requested both personal leave and FMLA leave. The topic was discussed at his deposition:

Q All right. But for the one in November and the one in December you didn't ask for FMLA leave; you asked for personal leave?
A Well, I already had an FMLA leave in process.
Q So if you already had an FMLA in process, why did you request a personal leave?
A I didn't know - I thought it was going to take some time for my wife - because I had two people that were ill that were going to get medical certifications -

Id. at 92.

         It seems that Suitor believed that his request for FMLA leave would take more time to process (since he needed medical documentation), [2] and so he thought he “would have a 30-day leave and then an FMLA.” Id. at 95. When asked why the both leave requests covered January 11, 2016, through February 9, 2016, Suitor indicated that he might have made a clerical error. Id. at 97.

         In response to the leave requests, Mr. Zybtowski and Ms. Cavazos scheduled a meeting with Suitor. Suitor Dep. at 90-91. Suitor believes that Mr. Zybtowski “crossed some boundaries” during the meeting. Id. at 101. In particular, Suitor was troubled by Mr. Zybtowski's questions about Suitor's personal issues with his wife. Id. Mr. Zybtowksi recommended that Suitor call a Charter helpline. Id. at 103-04. According to Suitor, Mr. Zybtowksi also told Suitor that he was “a marginal employee and [needed] to resign.” Id. at 104. In his deposition, Suitor characterized the conversation as follows:

And Scott indicated again, well - he said, “You're marginal at best.” “This is affecting my bottom-line, ” is what he said. “I'll have to carry you on the roster.” Well, that tells me this is money moti -that's his focus, and I understand he's got a department to run, but, you know, we're not here about that. We're here to discuss my leave, and this - he said exactly, “You're a marginal employee at best. This is affecting my bottom-line, ” that, “I'll have to carry you on the roster, ” and, “You need to resign.”

Id. at 105. See also Id. at 107 (“[H]e asked for my resignation on - two times during that meeting”).

         Suitor's discussions with Ms. Cavazos during the meeting were less confrontational. Suitor and Ms. Cavazos discussed other Charter employees who had received FMLA leave, and Ms. Cavazos suggested that Suitor might be eligible. Id. at 102, 106.

         Suitor's request for personal, non-medical leave was denied, but his request for FMLA leave was granted. See Notations to Req. Leave Absence, ECF No. 12, Ex. 6; Designation Notice, ECF No. 12, Ex. 11. Both of Suitor's leave requests specified the requested start date as January 11, 2016. However, Suitor was scheduled to take vacation from December 23, 2015, to January 4, 2016. Suitor Dep. at 110. Suitor also had four floating holidays available, and he wished to use those holidays to cover the week between his vacation and the beginning of his FMLA leave. Id. at 111-12. Mr. Harton refused to allow Suitor to use those floating vacation days, and instructed Suitor to contact Ms. Cavazos if he had questions. Id. at 112. When Suitor contacted Ms. Cavazos, she suggested that his FMLA leave begin on January 5, 2016. Id. at 113. Suitor accepted that proposal. Id. at 113-14.


         Suitor contends that Charter employees retaliated against him for taking FMLA leave in several ways. First, he indicates that he received a warning in January 2016, for failing to meet his sales thresholds for the preceding sales month. See Suitor Dep. at 115. The sales cycle in question ran from December 22, 2015, to January 21, 2016. Between Suitor's vacation days and FMLA leave, he only worked December 22 and 23 of that sales period. Id. In those two days, he sold five triple plays (with one more sale pending). See 1/7/16 Incident Log, ECF No. 12, Ex. 12. See also Suitor Dep. at 115. Despite the fact that Suitor was on pace to easily surpass his monthly thresholds (if he had worked the entire month), Mr. Horton faulted Suitor for failing to meet the overall monthly threshold.[3] Mr. Horton forwarded the incident log to Suitor, which included an action plan for Suitor to meet his monthly threshold.

         Based in part upon that email, Suitor believed that Charter expected him to work during his FMLA leave. In his deposition, he was asked whether he believed that Mr. Horton's “message was a communication to you that you had to work while on FMLA leave?” Id. at 121. Suitor indicated: “That's exactly that, yes.” Id. Suitor was troubled by the email, and so he contacted his brother, Don Suitor, who also worked for Charter:

I said, “Don, they want me to work while on FMLA.” You know - I said, “I don't know how I'm going to perform all these sales and that, ” and I said, “They didn't take my tablet and my phone. Will you contact Shaun and -” “Don will you pick up my tablet and phone and go bring it into Shaun and see if he will take it?” . . . So Don did go out . . . and contacted Shaun, and he called me back, and he said, “No, Shaun said you're going to need - “No, he's going to need that for making sales and calling customers, ” and that told me, well, I guess Shaun's expecting me to keep working.”

Id. at 123-24.

         Accordingly, Suitor made a number of phone calls to prospective customers while on FMLA leave.


         Finally, after Suitor returned to work, he received a written warning for failing to meet his sales thresholds in May 2016. Suitor believes that he should have merely received a verbal warning because, prior to taking FMLA leave, he had met his sales targets for three successive months. Suitor Dep. at 135. In his deposition, Suitor explained that when a direct sales representative reaches their sales thresholds for three consecutive months, their “step penalty is rolled back.” Id. In other words, discipline related to failure to meet sales thresholds is less severe for salespeople who have met those thresholds for the three immediately consecutive months. Id. at 135-36. Suitor further indicated that, when a salesperson takes vacation, that time counts toward the “rollback.” Id. at 136. Thus, if a salesperson takes “three months' worth of vacation, ” he or she “get a rollback.” Id. When Suitor did not reach his sales threshold in May 2016, he received a written warning instead of the verbal warning he would have otherwise received.

         Suitor returned from his FMLA leave on March 22, 2016. On April 12, 2016, Suitor sent Ms. Cavazos an email broaching the topic of additional FMLA leave: “Can you kindly advise how many days are remaining banked on my FMLA? I was informed my elderly father I provide care for will have to undergo a couple more surgeries coming up and I would like to plan ahead accordingly.” See April 12, 2016 at 2, Email, ECF No. 10, Ex. 12. Ms. Cavazos responded (and carbon copied Mr. Brackett, Suitor's new supervisor): “You used 78 days from 1/6/2016 until your return date on 3/22/16. That leaves you with 6 days or 48 hours that you may use until January 4, 2017. On January 4, 2017, you will be eligible for more FMLA days.” Id.

         In late June of 2016, Suitor asked his supervisor, Mr. Brackett, about the possibility of taking FMLA leave. Brackett Dep. at 13-14. Mr. Brackett referred Suitor to Ms. Cavazos, who told Suitor that he had exhausted his FMLA leave. Id. In response, Suitor forwarded Ms. Cavazos prior email (wherein she told Suitor that he had six days of FMLA leave remaining) back to her. April 12, 2016 at 2. Ms. Cavazos informed Suitor that her prior calculation had included a thirty day personal leave of absence.[4] Id. at 1. However, she told Suitor: “I know how difficult it can be with elderly parents and if you have vacation time, you may use that.” Id.[5] Approximately five weeks later, Suitor was terminated.


         Suitor attributes his termination (and his periodic struggles to meet monthly sales thresholds) to the personal difficulties he was experiencing and the FMLA leave which he took as a result. ...

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