Opinion
Case No. 3:01cv-21-J-20-TJC
August 27, 2002
ORDER
Before the Court are Defendant's Motion for Summary Judgment (Doc. No. 13 14, filed on May 17, 2002) and Plaintiff's Opposition to same (Doc. No. 30, filed on June 10, 2002) Also before the Court is Defendant's Motion for Leave to Supplement its Motion for Summary Judgment with Affidavits of Mark Martin and David Niesse (Doc. 46, filed on June 20, 2002) to which Plaintiff filed no response, and Defendant's Motion to Strike Affidavits of Walter J. Corley and William Morse (Doc. No. 45, filed on June 20, 2002) and Plaintiff's Response in Opposition (Doc. No. 47, filed on July 8, 2002).
Regarding Defendant's Motion to Strike Affidavits of Walter J. Corley and William Morse (Doc. No. 45, filed on June 20, 2002), the Court finds that the Affidavits fail to follow the requirements of the Federal Rules of Procedure and Federal Rules of Evidence in that they do not facially appear to be based upon personal knowledge. In addition, Mr. Morse was not disclosed by Plaintiff properly or timely, and has not provided substantial justification for such untimeliness. Rules 37(c)(1) and 26(e)(2). For those reasons, this Court has no choice but to strike paragraphs 5, 7, 9, 10 and 11 of Mr. Corley's Affidavit and all of Mr. Morse's Affidavit. In any event however, even if the Affidavits had been admissible, they would not have changed the Court's decision to enter summary judgment since they do not raise material questions of fact as to the dispositive issue regarding retaliation, that is, whether these witnesses were similarly situated as Plaintiff (regarding the pursuit of worker's compensation claims) are whether they were taking and using expensive equipment like the tugger for a side job without permission. In other words, regardless of what these witnesses stated in their Affidavits, they do not raise material questions of facts as to the dispositive issue of whether the Defendant's retaliation was motived by discriminatory intent of Plaintiff's pursuit of his workers' compensation claim.
Since Plaintiff's Affidavits did not raise a question of material fact, there is no point in deciding on Defendant's Motion for Leave to Supplement its Motion for Summary Judgment with Affidavits of Mark Martin and David Niesse (Doc. 46, filed on June 20, 2002), each of which attest to the fact that Mr. Niesse had permission to use certain equipment due to an emergency flooding situation at his house that was being constructed.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing the Court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial. Clark v. Coats Clark Inc., 929 F.2d 604, 608 (11th Cir. 1991). When a moving party has discharged its burden, the nonmoving party must then "go beyond the pleadings," and by its own affidavits, or by "depositions, answers to interrogatories, and admissions on file," designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In determining whether the moving party has met its burden of establishing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, the Court must draw inferences from the evidence in the light most favorable to the nonmovant, Key West Harbor v. City of Key West, 987 F.2d 723, 726 (11th Cir. 1993), and resolve all reasonable doubts in that party's favor.Spence v. Zimmerman, 873 F.2d 256, 257 (11th Cir. 1989).
Thus, if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant the summary judgment motion. Augusta Iron and Steel Works v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir. 1988). It must be emphasized that the mere existence of some alleged factual dispute will not defeat an otherwise properly supported summary judgement motion. Rather, "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
II. FINDINGS OF FACT and CONCLUSIONS OF LAW
Defendant seeks summary judgment on all Counts of Plaintiff's Complaint. Count I of the Complaint claims aviolation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140 because Defendant allegedly advised him to resign instead of be terminated so that he would not lose his pension benefits. Count II claims a violation of 440.205, Florida Statutes, for allegedly terminating him from employment, intimidating and coercing him in his pursuit of medical treatment, and placing him on a restricted access list after his termination in retaliation for his attempts to claim compensation under Florida's Worker's Compensation law. Count III alleges that Defendant intentionally and unjustifiably interfered with Plaintiff's business relationships by prohibiting his access to Defendant's property after his termination.
First, Plaintiff has failed to establish that a reasonable jury could return a verdict in his favor on the claim of an ERISA violation. Plaintiff claims that he was threatened to choose to resign rather than to be terminated, which violated his ERISA rights. However, Plaintiff's medical benefits and accrual of future, unvested pension benefits would cease to exist whether he resigned or was terminated. Plaintiff has come forth with no evidence of the key issue, which would be facts to show that FPL's decision to terminate him or cause him to resign was motivated by a desire to reduce its contributions to the pension and benefits plans. That is, there is no "evidence that the employer intentionally discriminated against [Plaintiff] an employee to retaliate for the exercise of rights, or to interfere with the attainment of entitled rights, under the plan or ERISA." Owens v. Storehouse, Inc., 984 F.2d 394, 399 (11th Cir. 1993). As in Owens, here the record is devoid of any evidence of intentional discrimination in violation of ERISA.
The specific intent standard does not require the Plaintiff to show that interference with health or retirement benefits was the sole reason for the discharge, but does require the plaintiff to show more than an incidental loss of benefits as a result of the discharge. Seaman v. Arvida Realty Sales, 985 F.2d 543, 546 (11th Cir. 1993); Huber v. Arvida Realty Sales, 1996 WL 420883 *2 (M.D. Fla.). Plaintiff has offered nothing about the amount of benefits he might have received, nor the amount FPL may have saved by letting him go, to suggest that the decision to fire him was motivated — even in part — by a desire to avoid pension or health care responsibilities. Duffy v. Drake Beam Morin, 1998 WL 252063 *10-11 (S.D.N.Y) (dismissing ERISA claim because there was no evidence that employer's decision to fire employee was motivated by desire to reduce its contributions to pension or benefits plans thus failing to raise inference of specific intent to deny benefits). Accordingly, Plaintiff's ERISA claim does not withstand summary judgment.
Count II claims retaliation in violation of 440.205, Florida Statutes, for allegedly terminating him from employment, for intimidating and coercing him in his pursuit of medical treatment, and for placing him on a restricted access list after his termination in retaliation for his attempts to claim compensation under Florida's Worker's Compensation law. Even if the Court views the evidence in the light most favorable to Plaintiff and regards his resignation as involuntary, and thus as an adverse employment action, the Court finds that Defendant has established a legitimate reason for requesting Plaintiff to resign. The undisputed evidence shows that neither Mr. Corley nor Plaintiff received permission to use the FPL tugger for an outside job. The fact that Plaintiff thought Corley had obtained permission is of not moment. Also, the possibility that Mr. Ashley stated that he may or may not have known that Plaintiff was working a side job and that he may have given Plaintiff permission to use tools for that side job, are not material questions of facts for they do not amount to any evidence showing or even inferring that he was aware that Plaintiff was specifically going to take, and use, the tugger on the side job.
The bottom line is that they did not have permission to take and use the $35,000 tugger for the side job, which was in violation of company policy. The undisputed facts show that Plaintiff removed a pinto hitch from an FPL truck, without permission, and attached it to his personal truck so that he could tow the tugger. There also is no dispute that the tugger was taken off of FPL's property by Plaintiff without permission on December 12th and had not yet been returned to the FPL St. Augustime Service Center on December 17, 1998, the day the investigating interview occurred with Mr. Kennedy, Corley and Plaintiff, almost a week later. The undisputed facts also show that at the end of the interviewing process, Mr. Kennedy concluded that the tugger had essentially been stolen. It is also uncontraverted that both Corley and Plaintiff were given the same opportunity to resign, and both were long term employees who were fully vested in Defendant's pension and benefit plans. Both employees were treated the same, given the legitimate, nondiscriminatory reasons for Defendant's adverse employment action, assuming the resignation were to be deemed as involuntary and adverse.
To survive summary judgment, Plaintiff must carry his burden of proof "by showing that a discriminatory reason more likely than not motivated the employer's decision, or by discrediting the employers proffered explanation. Clark, Coats Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1992). Plaintiff has not carried his burden of proffering material facts into evidence to show that Defendant's reasons were pretextual, other than to assert vaguely that there was evidence of "Defendant's mendacity" and "comparative examples." (Pl's Memo. at 9.) Consequently, Plaintiff's claim of retaliation in violation of 440.205, Florida Statutes, for allegedly terminating him from employment in 1998 is subject to summary judgment.
The Court further finds that no reasonable jury could find in favor of Plaintiff on his claim that Defendant's retaliation violated 440.205, Florida Statutes, by allegedly intimidating and coercing him when it suspended him during an investigation of "theft of electricity" in 1995 because the suspension was rescinded and he was reimbursed all of his lost wages. Therefore, Plaintiff suffered no adverse employment action.Pennington v. City of Huntsville, 261 F.3d 1262, 1267-68 (11th Cir. 2001) (recognizing law indicates that decision to reprimand employee, if rescinded before employee suffers tangible harm, is not adverse employment action). In addition, Plaintiff's claim that Defendant retaliated in violation of 440.205, Florida Statutes, by delaying his necessary medical treatment cannot withstand summary judgment because a cause of action for the intentional tort of retaliation for an employee's pursuit of a worker's compensation claim under section 440.205 falls within the exclusive jurisdiction of worker's compensation claims. Montes De Oca v. Orkin Exterminating Co., 692 So.2d 257 (Fla. 3d DCA 1997) (citingSmith v. Piezo Technology and Professional Adm'rs, 427 So.2d 182 (Fla. 1983) to distinguish between an action for wrongful discharge in retaliation for employee's pursuit of a workers' compensation claim which is within the jurisdiction of a court, versus an action as here, for retaliation by delaying medical treatment, which is based on the manner in which a worker's compensation claim is being handled, and which is within the exclusive jurisdiction of a deputy commissioner); Sheraton Key Largo v. Roca, 710 So.2d 1016, 1017 (Fla. 3d DCA), review denied, 728 So.2d 204 (Fla. 1998) (holding that claimant could not avoid exclusivity of workers' compensation act by asserting intentional infliction of emotional distress claim against employer for delaying authorization of necessary emergency surgery). A reasonable jury cannot find in favor of Plaintiff on this retaliation claim in Count II for delaying medical treatment since the undisputed facts do not show that the discharge was a discriminatory adverse employment action in retaliation of, or as a result, of Plaintiff's pursuit of a compensation claim.
Plaintiff also claims that Defendant violated § 440.205, Florida Statutes, for allegedly placing him on a restricted access list after his termination in retaliation for his attempts to claim compensation under Florida's Worker's Compensation law. Once again, the evidence fails to show that Defendant's actions were motivated by retaliation for Plaintiff's filing of his compensation claim. Also, Defendant has proffered a legitimate reason for restricting access to its property due to the investigation and conclusion that Defendant had taken a tugger from its property without authorization, thus having committed a theft, which resulted in Plaintiff's discharge/resignation. Plaintiff has not demonstrated that such reason is pretextual, and has not shown that the comparative former employees were "involved in or accused of the same or similar conduct" (theft) and were disciplined in a different, more favorable manner. Anderson v. WBMG-42, 253 F.3d 561, 564 (11th Cir. Ala. 2001). Therefore, this retaliation claim cannot survive summary judgment either.
Count III alleges that Defendant intentionally and unjustifiably interfered with Plaintiff's business relationship with his new employer, Asplundh, by prohibiting his access to Defendant's property. To prevail on a claim of tortious interference with a business relationship, a plaintiff must prove that:
1) a business relationship existed;
2) the defendant knew of the business relationship;
3) the defendant intentionally and unjustifiably interfered with the relationship; and
4) the plaintiff was damaged as a result of the breach of the business relationship.Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla. 1994).
As to the third element of Plaintiff's tortious interference claim, Plaintiff cannot, as a matter of law, prove that Defendant intentionally and unjustifiably interfered with his business relationships. Defendant contends that it was justified in restricting Defendant from access onto its property in light of its investigation and conclusion that he had removed expensive FPL property (the $35,000 tugger) without permission. "Generally speaking, one is privileged under the law to "interfere" with another's business relationship to protect on's own financial interests."Professional Food Equipment, Ltd. v. Hobart Corp., 1999 WL 1044231 *5 (M.D. Fla., 1999). Plaintiff's assertion that the restrictions were arbitrarily enforced has not been established through any evidence of other former employees who were similarly situated with having been discharged for theft. Even viewing the evidence in the light most favorable to Plaintiff, this Court must conclude that Defendant's restriction of access to its property is unquestionably a lawful act, and as a matter of law, that act cannot give rise to a claim for tortious interference with business relationships.
All in all, perhaps Plaintiff was caught in the middle of an unfortunate set of circumstances, where he was under the impression that his co-worker, Corley, had obtained permission to use the tugger and had returned it properly and timely, meaning that Plaintiff did not in fact take the tugger with an intent to commit theft. However, the material undisputed facts giving rise to his predicament (including the fact that he took the tugger without permission) which resulted in Defendant's request for both of their resignations do not raise any legal cause of action against the Defendant, for any violation of ERISA, for any discrimination or retaliation for his having filed a worker's compensation claim, or for any intentional interference with business relationships. Since no reasonable jury could return a verdict in his favor based on the undisputed material facts, summary judgment is appropriate on all Counts in the Complaint.
Based on all of the above, it is
ORDERED AND ADJUDGED that:
1) Defendant's Motion for Leave to Supplement its Motion for Summary Judgment with Affidavits of Mark Martin and David Niesse (Doc. 46, filed on June 20, 2002) is MOOT;
2) Defendant's Motion to Strike Affidavits of Walter J. Corley and William Morse (Doc. No. 45, tiled on June 20, 2002) is GRANTED; and
3) Defendant's Motion for Summary Judgment (Doc. No. 13 14, filed on May 17, 2002) is GRANTED.
4) The Clerk is directed to enter judgment in favor of the Defendant and to close the file.