United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTIONS
FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION IN
LIMINE AS MOOT, AND OVERRULING DEFENDANT'S OBJECTIONS TO
PRETRIAL DISCLOSURES AS MOOT
L. LUDINGTON UNITED STATES DISTRICT JUDGE
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
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
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. 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.
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.
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.
his time with Charter, Suitor experienced certain recurring
challenges in his personal life. Suitor requested leave
several times in response to those challenges.
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.
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.
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.
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
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.
seems that Suitor believed that his request for FMLA leave
would take more time to process (since he needed medical
documentation),  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.
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
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.
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.
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. Mr. Horton forwarded the incident log to
Suitor, which included an action plan for Suitor to meet his
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
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.
Suitor made a number of phone calls to prospective customers
while on FMLA leave.
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
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.
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. 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. Approximately five weeks later,
Suitor was terminated.
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