United States District Court, D. South Carolina, Florence Division
JAMES F. MEADE, Plaintiff,
A.B. PROPERTY SERVICES, INC. d/b/a Happy Floors, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, Magistrate Judge.
This action arises out of Plaintiff's termination with Defendant. Plaintiff alleges that Defendant terminated his employment in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Plaintiff originally filed this action in the Horry County Court of Common Pleas on June 25, 2014. Defendant removed it to this court on July 24, 2014, pursuant to 28 U.S.C. § 1331. Presently before the court is Defendant's Motion for Summary Judgment (Document # 33). After an extension of time, Plaintiff timely filed his Response (Document # 40). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
A. Defendant Happy Floors
Defendant is a Florida corporation with its principal place of business in Miami, Florida. Defendant's Local Rule 26.03 Answers to Interrogatories (Document # 8) p. 1. Elie Elbaz and Sol Bonan are the principal owners and officers of the company. Def. Dep. 10-11 (Ex. 2 to Pl. Resp.). Elbaz started the company and is in charge of "everything" concerning the company. Def. Dep. 9; 101. Defendant is engaged in the business of selling tile to customers. Def. Dep. 15-16. Defendant imports tile from Italy and Spain, and sells it to customers located primarily in the United States. Def. Dep. 15-19. Defendant sells tile to customers through two different sales models: retail sales and Architecture and Design (A&D) sales. Pl. Dep. 45-54, 65-67, 121 (Ex. 1 to Pl. Resp.); Def. Dep. 20-25.
In the retail sales model, sales representatives for Defendant travel to showrooms that sell tile directly to consumers. Pl. Dep. 45-47; Def. Dep. 20-22. Defendant refers to the showroom as a "dealer, " and the dealer or showroom is Defendant's customer in the retail sales model. Def. Dep. 20-22. Once the Defendant sales representative arrives at a showroom, he or she meets with the decision-makers, educates them about Defendant's tile, and attempts to place a display in the showroom. Pl. Dep. 46-47. If a consumer purchases Defendant's tile from the showroom, Defendant makes money from the sale. Pl. Dep. 48.
In June or July of 2011, Elbaz decided to invest in developing the A&D sales model. Def. Dep. 33, 58-59, 61. In the A&D sales model, Defendant's sales representatives travel to architecture firms to meet with architects and designers, who make specifications for construction projects. Pl. Dep. 48-49, 65-67. During these meetings, Defendant sales representatives provide information about Defendant's tile, show samples of Defendant's tile, and attempt to leave architectural binders with the firm, which contain samples of Defendant's products. Pl. Dep. 48-50, 53-54. The hope is that an architect or designer will specify Defendant's tile for an upcoming construction project. Pl. Dep. 53-54, 65-67; Def. Dep. 24-25. If so, the specification for Defendant's tile is included in the plans for the project. Pl. Dep. 50-51, 65-66. Then, once the project is awarded to a general contractor, a subcontractor purchases the tile directly from Defendant. Pl. Dep. 50-51, 121. Defendant makes money when the subcontractor purchases the specified tile from Defendant. Def. Dep. 50-51, 121.
B. Plaintiff's Employment with Defendant
In the summer of 2011, James Nowicki, Defendant's national sales manager, began discussing A&D employment with Plaintiff. Prior to Plaintiff being hired, he had four discussions with Nowicki regarding the concept of an A&D sales division. Pl. Dep. 126-27. After the third conversation, he sent an email to Nowicki, dated June 29, 2011, in which he stated, "I realize everything has to make good business sense' for the owners and management team" with respect to Defendant hiring him and developing the "A&D segment of the business." Pl. Dep. 125-27; Email from Plaintiff dated June 29, 2011 (Ex. to Def. Motion). According to Elbaz, during the process of interviewing Plaintiff, Plaintiff requested that he give him one year to prove himself and the A&D division. Def. Dep. 33, 37.
Defendant initially focused the A&D department in the South Florida market, "from Orlando, south." Def. Dep. 60. Later, Defendant decided to expand the A&D division nationwide. Def. Dep. 60-61. Defendant hired Plaintiff on September 1, 2011. Pl. Dep. 96. Plaintiff testified that Defendant hired him as A&D manager. Pl. Dep. 96. Defendant testified that it hired him as an A&D salesman who the company was grooming to be an A&D manager after he developed the area and was capable of bringing in revenue. Def. Dep. 33, 93. In fact, Plaintiff was the first A&D employee Defendant hired after deciding to take the program nationwide. Def. Dep. 96-97. According to Defendant, the geographic sales area of the nationwide A&D department was "[a]nywhere we can get a sale, " and Plaintiff's sales territory was "[t]echnically everywhere." Def. Dep. 61, 95.
Plaintiff worked from home in Myrtle Beach, South Carolina when not traveling on A&D business. Pl. Dep. 102-03. From home, Plaintiff scheduled and participated in teleconferences with the A&D sales force. Pl. Dep. 103-04. Plaintiff also contacted architectural firms to schedule upcoming meetings for he and the A&D sales force. Pl. Dep. 103-04, 107. Defendant never provided Plaintiff with any sales quotas or any numerical sales expectations of any kind during his time as A&D manager. Pl. Dep. 69; Def. Dep. 89. Furthermore, Defendant never informed Plaintiff that either he or the A&D Department would be subject to any type of review, annual or otherwise. Pl. Dep. 69, 145. Plaintiff admitted that he never knew whether the A&D sales division was, in fact, profitable during his management/employment. Pl. Dep. 130. During the course of Plaintiff's employment in A&D sales, he neither monitored sales ultimately placed by designers, nor received reports of sales generated by A&D. Plaintiff Dep. 59. He received no written information that would indicate the sale or orders generated through his efforts in A&D nor was he privy to the A&D sales representatives' expenses. Pl. Dep. 68, 119. Nowicki managed their expenses, and he managed their sales. Pl. Dep. 119-120. Plaintiff did not know what regions were generating the most sales or the most specifications. Pl. Dep. 244, 245.
While with the A&D division, Plaintiff was never disciplined for poor job performance, nor given any type of verbal reprimand. Def. Dep. 72-73, 218. Plaintiff testified that James Nowicki, Defendant's national sales manager and Plaintiff's direct supervisor, provided Plaintiff with verbal assurances that the A&D department was exceeding expectations under Plaintiff's leadership. Pl. Dep. 92-94, 131, 211-12.
Plaintiff testifies that in September 2012, Nowicki notified him that Defendant would hold "a year-end sales meeting" with all A&D staff in December 2012 to discuss the upcoming year, 2013. Pl. Dep. 70-71, 141-42, 204-07; Email from Plaintiff dated October 29, 2012 (Ex. 6 to Pl. Resp.). This year-end A&D sales meeting would be held in conjunction with Defendant's annual sales meeting, which also took place in December. Pl. Dep. 70-71, 141-42. Nowicki told Plaintiff that he would be responsible for leading the A&D sales meeting in December 2012. Pl. Dep. 70. Nowicki asked Plaintiff "to put together a point of interest for he and Eli [Elbaz] to review so we could discuss to make the meeting very productive and beneficial for all involved." Pl. Dep. 141-42.
Plaintiff sent an email to Nowicki on October 1, 2012 with the subject line that read, "End of Year Review." Pl. Dep. 141-42; Email from Plaintiff dated October 1, 2012 (Ex. 4 to Pl. Resp.). In the email, Plaintiff asked for an end of the year meeting with "HF Mgmt" to discuss his performance and his role with the Florida A&D sales representatives, Ms. Alvarez and Mr. Kapper. Email from Plaintiff dated October 1, 2012. Plaintiff requested this meeting because after his conversation with Mr. Nowicki in September 2012, he expected to receive a raise. Pl. Dep. 71.
C. Expectations and Actual Performance of A&D Sales Model
Defendant expected that the A&D sales division would be profitable. Def. Dep. 73. It has a benchmark of $1, 000, 000.00 in annual sales per person in the dealer market. Def. 73-74. Defendant expected the same sales to be generated from A&D sales representatives. Def. Dep. 74. Defendant expected to see a profit within one year of starting the A&D venture. Def. Dep. 75. Defendant informed all pure A&D sales representatives (Plaintiff and Marlene Alvarez) upon hire that he expected their sales to sustain themselves, or allow the company to break even. Def. Dep. 88-89. Defendant explained, in sum, his arrangement with Plaintiff as follows: "Jim came into the table, just to build [A&D].... And he tried. And we tried to give him all the support we can, but he understood that it has to be built in one year, if not, the whole deal is going down." Def. Dep. 93.
Plaintiff recalls that, in September 2012, Nowikci informed Plaintiff of the status of the A&D department and of the plans to expand the department in the future. Pl. Dep. 92-94, 205-06. Nowicki told Plaintiff that the A&D department was performing "great" and that the company planned on hiring additional A&D sales representatives. Pl. Dep. 92-94, 205-06. Nowicki also stated that Mr. Gibbs would receive a raise at the year-end meeting. Pl. Dep. 212. However, Elbabaz testified that A&D sales were so minimal that, even if the sales were multiplied by ten, the A&D sales representatives would still not break even or become eligible for a commission. Def. Dep. 54-55. In addition, in August of 2012, one of Defendant's competitors began soliciting Defendant's sales representatives, including Michael Gallup, who quit on August 31, 2012. Def. Dep. 156. On or about September 17-18, 2012, Defendant was notified that another salesperson in New Jersey, Jeffrey Estevez, was solicited as well, giving his two weeks' notice. Def. Dep. 156. Estevez explained that he had been offered more money by the competitor. Def. Dep. 156. Fearing he was "going to lose all the salespeople" and, with that, also lose "all the sales in the northeast, " at the end of September, Elbaz decided that he "had to find money to pay all the people...." Def. Dep. 156-57). Elbaz explained he needed "more money, more budgets." Def. Dep. 157.
Around the same time, Elbaz received the October 1, 2012, email from Plaintiff requesting an end of the year review. Def. Dep. 157. In its position statement to the Equal Employment Opportunity Commission (EEOC), dated May 23, 2013, and its written discovery responses, dated August 28, 2014 and November 7, 2014, Defendant stated it made the decision to terminate Plaintiff during "the first week of October 2012." See Documents bates stamped as Defendant's Discovery Responses 000163-000165 (Ex. 17 to Pl. Resp.); Defendant's Local Rule 26.03 Answers to Interrogatories (Document # 8); Defendant's Answers to Plaintiff's First Set of Interrogatories #11 (Ex. 7 to Pl. Resp.). However, during his deposition Elbaz testified that he decided to close the A&D department around October 15th or 16th of 2012, in an effort to free up enough money to keep the salespeople in the northeast market that he was concerned of losing to competitors. Def. Dep. 157-58. He further testified that he made the decision at that time to terminate Plaintiff's employment. Def. Dep. 222.
Elbaz further testified that he attempted to communicate its decision to Plaintiff on October 16th or 17th, but was unable to reach him. Elbaz testified that he tried to call Plaintiff on both his company phone and personal phone immediately after he made the decision to close the department on October 16th or 17th, but both were disconnected and he was "off the radar" and unable to be tracked via GPS. Def. Dep. 260; 242, 244. "His computers were off, everything was off, he was not logging in, we see when he logs in, we can see his computer, we can see his iPhone, we can see what the location is, and everything in a normal day, but everything was off. We didn't know what's going on." Def. Dep. 261.
In the beginning of November, Elbaz flew to New York to meet with all of the salespeople and informed them that Defendant was closing the A&D department and would be focusing only on the retail sales model. Def. Dep. 161.
D. Plaintiff's Alcohol Use
Leading up to October 12, 2012, Plaintiff struggled with alcoholism for a number of years. Pl. Dep. 7-8; Sloan Dep. 20-21, 35-36 (Ex. 3 to Pl. Resp.). Plaintiff's counselor, Theresa Sloan, of McCarthy Counseling Associates, diagnosed Plaintiff with alcoholism on September 28, 2009, and on June 14, 2012. Sloan Dep. 20-21, 35-36. Initially, on September 28, 2009, Sloan diagnosed Plaintiff as suffering from a form of alcoholism known as alcohol abuse. Sloan Dep. 20-21. Later, in June 2012, Sloan diagnosed Plaintiff as suffering from a more severe form of alcoholism known as alcohol dependence. Sloan Dep. 35-36. In June 2012, Sloan concluded Plaintiff was an "addictive" alcohol user, who engaged in "excessive" alcohol use. Sloan Dep. 37-38. Plaintiff first sought treatment for alcoholism in 2005 or 2006. Pl. Dep. 7-8. Plaintiff continued to receive treatment for alcoholism during his employment with Defendant. Pl. Dep. 145.
On the evening of Friday, October 12, 2012, Plaintiff began drinking alcohol excessively. Pl. Dep. 168-69, 171. Plaintiff continued drinking alcohol excessively the following day. Pl. Dep. 169, 171. On Sunday, October 14, 2012, Mr. Meade woke up, and he consumed no alcohol that morning as he prepared to fly to Philadelphia to attend A&D meetings beginning on Monday, October 15, 2012. Pl. Dep. 171-73. As soon as Plaintiff arrived in Philadelphia on Sunday evening, he began consuming alcohol. Pl. Dep. 166, 171-73. Plaintiff consumed so much alcohol that when he awoke on Monday, Otober 15, 2012, he was in no condition to work. Pl. Dep. 166, 173. On Monday morning, Plaintiff sent a text message to Nowicki requesting permission to take "personal time." Pl. Dep. 173. Nowicki responded with a text message that read, "[t]ake as much as you need." Pl. Dep. 173. Plaintiff cancelled his meetings and informed Nowicki that he was "flying home to Myrtle Beach on my own expense." Pl. Dep. 173. When Plaintiff returned to Myrtle Beach on Monday, October 15, 2012, he immediately began drinking alcohol. Pl. Dep. 174. Plaintiff continued drinking alcohol throughout Monday, October 15, 2012, Tuesday, October 16, 2012, and Wednesday, October 17, 2012. Pl. Dep. 174. On Thursday, October 18, 2012, Plaintiff made an emergency visit to Sloan's office. Pl. Dep. 163-64, 174. Upon arrival, Plaintiff informed Sloan that he "wanted to change [his] life, and after some ...