Dowler v. GEICO Gen. Ins. Co.

• Decision Date: 12 August 2021
• Docket Number: Case No. 8:20-cv-2530-VMC-AAS
• Citation: 554 F.Supp.3d 1243
• Parties: Andrew DOWLER, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Florida

554 F.Supp.3d 1243

Andrew DOWLER, Plaintiff,

v.GEICO GENERAL INSURANCE COMPANY, Defendant.

Case No. 8:20-cv-2530-VMC-AAS

United States District Court, M.D. Florida, Tampa Division.

Signed August 12, 2021

Alexander Thomas Harne, Noah E. Storch, Richard Celler Legal, P.A., Davie, FL, for Plaintiff.

Reed Russell, Phelps Dunbar, LLP, Tampa, FL, for Defendant.

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE

This matter comes before the Court upon consideration of Defendant GEICO General Insurance Company's Motion for Summary Judgment (Doc. # 23), filed on June 10, 2021. Plaintiff Andrew Dowler responded on July 12, 2021. (Doc. # 26). GEICO replied on July 21, 2021. (Doc. # 28). For the reasons set forth below, the Motion is granted.

I. Background

Dowler was employed by GEICO from 2001 to 2019 – first as a service counselor, and later as a procedures analyst. (Doc. # 23-2 at 17:17-23, 20:4-9). In the early morning of February 11, 2019 – a workday – Dowler was involved in a motor vehicle accident. (Id. at 83:16-21). Thereafter, an ambulance transported Dowler to a hospital, where he was treated and diagnosed with a concussion. (Id. at 84:13-14, 85:24-86:1; Doc. # 23-3 at 51-59; Doc. # 23 at 7 n.1). According to Dowler, "Physically, I didn't really have a scratch, but ... it was very hard to think." (Doc. # 23-2 at 85:24-25).

While at the hospital, Dowler attempted to use his cellphone, but he "could not operate the phone." (Id. at 86:3-8). Dowler remembered trying to press buttons, but only seeing "flashes." (Id. ). At his deposition, Dowler testified that because he was scheduled to work that day, he attempted to inform his supervisor, Tiffany Vilches, of the accident. (Id. at 26:2-4, 99:2-4). To do so, Dowler hoped to send her a photo of his hospital bracelet. (Id. at 103:21-23). Instead, Dowler responded to a text message Vilches had sent the week prior:

(Doc. # 23-3 at 62). Immediately after Dowler responded at least partially incoherently, he sent Vilches a pornographic image "of a male's nude genitals being held in a hand." (Id.; Doc. # 23 at ¶ 14). About an hour after sending the image, and approximately two hours after being admitted, Dowler was discharged from the hospital. (Doc. # 23-3 at 62; Doc. # 23-2 at 88:7-25). A few hours later, Dowler followed up, texting Vilches only: "I am in the ER." (Doc. # 23-11 at 2). According to Dowler, he unintentionally sent Vilches the image, and did not realize until long after that he had done so. (Doc. # 23-2 at 94:2-4). Dowler further testified that he is gay and that Vilches knew this. (Id. at 101:15-16).

Vilches, however, believed that Dowler sent the pornographic image intentionally. (Doc. # 23-4 at 27:6-8). Vilches assumed that the portion of the incoherent text message referring to an "authoritative grasp" was connected to the image. (Id. at 28:21-29:5). Vilches testified that she felt "[d]isgust, panic, [and] anxiety." (Id. at 30:5-6). Vilches considered the message sexual harassment. (Id. at 48:13-18). Although Vilches was aware that Dowler was previously married to a man, she explained: "I mean just because someone has a certain sexual orientation, we live in a very modern time. Just because he was married to a man doesn't mean that he wasn't also interested in women." (Id. at 43:18-22). Thereafter, Vilches notified her manager, Carmen Smith, of the messages, and later blocked Dowler's cellphone number. (Id. at 25:14-16, 28:13, 30:16-17).

After Smith arrived at work that same morning, she advised GEICO's human resources department of the incident. (Doc. # 23-7 at ¶ 6). Human resources supervisor Tynetta Settles and human resources compliance specialist Tracy Stafford then each interviewed Vilches and Smith. (Doc. # 23-4 at 45:21-25; Doc. # 23 at ¶¶ 23, 25; Doc. # 26 at 8). According to Smith, "and on advice from Stafford," she "attempted to contact Dowler to get his statement about the incident, but [ ] was unsuccessful." (Doc. # 23-7 at ¶ 9). According to Dowler, however, he did not receive a call from Smith that day. (Doc. # 26 at 8; Doc. # 26-2 at ¶ 35). Later that day, Smith avers that she "learned from Stafford that [regional vice president] Pionne Corbin agreed that it was appropriate to terminate Dowler's employment because his act of sending a nude photograph to Vilches was a clear violation of company policies." (Doc. # 23-7 at ¶ 10).

The next day, Dowler returned to work, at which point he met with Stafford and human resources manager Ann Marie LoCascio. (Doc. # 23-2 at 110:24-111:17; Doc. # 23-8 at 45:10-24; Doc. # 23 at ¶ 31; Doc. # 26 at 9). According to Dowler, the purpose of the meeting was "to discuss his need for [Family Medical Leave Act ("FMLA")] leave and to provide [them] with proper documentation from his physician." (Doc. # 26 at 9; Doc. # 26-2 at ¶ 40). He avers that the meeting began with him explaining the car accident and the "symptomology arising from [his] severe head injury for which [he] necessitated FMLA leave for further evaluation, treatment, testing, appointments, and diagnostics associated therewith." (Doc. # 26-2 at ¶ 41). However, LoCascio testified that the meeting concerned the pornographic image:

Q. What did you say to Mr. Dowler in that meeting on February 12th?

A. I explained to Mr. Dowler that he was being placed on administrative leave [and] that we were conducting an investigation. I told him that at the conclusion of that investigation if there is no wrongdoing found, his time away from our company would be compensated and he would return to our company. If there was wrongdoing found, then that day effectively would be his last date of employment with our company.

(Doc. # 23-8 at 45:15-24). Thus, Dowler was notified at the meeting that he was on administrative leave. (Id. ).

Shortly after the meeting, Dowler formally applied for medical leave. (Doc. # 23-10; Doc. # 23 at ¶ 36; Doc. # 26 at 9-11). Dowler had until February 27, 2019, to file his physician's certification. (Doc. # 23-10 at 2). But before Dowler completed his application, his employment at GEICO was terminated. (Doc. # 23-5 at 29:2-3). On February 14, 2019, Smith drafted a "termination memorandum" explaining the incident and outlining GEICO's reasons for terminating Dowler's employment. (Doc. # 23-11). The memorandum explained that the pornographic image Dowler sent to Vilches violated GEICO's code of conduct and policies:

These actions are a direct violation of our Code of Conduct, which states, in part we are to: "... Maintain an atmosphere of mutual respect by and for all associates and applicants. Associate behavior must be professional, courteous and friendly and not create what a reasonable person would consider to be an intimidating, hostile or offensive work environment to each other and to our internal and external customers."

In addition, your actions violated our Fair Workplace policy which states, "Sexual harassment may include verbal, written or physical conduct of a sexual nature engaged in by a person of the same sex as well as of the opposite sex. Comments or behavior which intimidate, ridicule or demean an associate's status based on gender may also constitute sexual harassment. Sexual harassment is considered a form of associate misconduct and individuals engaging in sexual harassment (including management associates who knowingly allow such behavior to continue) will be subject to corrective action, up to and including termination of employment."

(Id. at 2-3). According to Smith, she "made the decision to terminate Dowler's employment based solely on his act of sending the nude photograph to Vilches, ... and not based on [his] request for FMLA leave." (Doc. # 23-7 at ¶ 15). On February 25, 2019 – after Smith received approval from GEICO's corporate human resources department – she notified Dowler that his employment was terminated, effective February 12, 2019. (Id. at ¶ 14). "During the phone call, [Smith] offered Dowler the option to resign, but [he] declined." (Id. ).

Dowler initiated this action on October 28, 2020. (Doc. # 1). The complaint includes the following claims against GEICO: unlawful interference under the FMLA (Count I), and unlawful retaliation under the FMLA (Count II). (Id. at 4-5). GEICO filed its answer on November 20, 2020, and the parties then proceeded with discovery. (Doc. ## 11; 14). Now, GEICO moves for summary judgment in its favor. (Doc. # 23). Dowler has responded (Doc. # 26), and GEICO replied. (Doc. # 28). The Motion is ripe for review.

II. Legal Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993) ). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). 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. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). "When a moving party has discharged its burden, the non-moving party must then ‘go beyond the pleadings,’ and by its own affidavits, or by ‘depositions, answers to interrogatories, and admissions on file,’ designate specific...