Makere v. Allstate Ins. Co.
| Docket Number | 3:20-cv-905-MMH-LLL,3:20-cv-921-MMH-LLL,3:20-cv-922-MMH-LLL |
| Decision Date | 21 June 2023 |
| Parties | ELIAS MAKERE, FSA, MAA, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. ELIAS MAKERE, FSA, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. ELIAS MAKERE, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE is before the Court on Defendant's Dispositive Motion to Dismiss Plaintiff's Full Verified Civil Complaint with Prejudice and Memorandum of Law in Support Thereof (Doc. 78; Motion) filed on November 23 2021.[2] In the Motion, Defendant Allstate Insurance Company moves to dismiss the claims set forth in Plaintiff Elias Makere's Full Verified Civil Complaint (Doc. 73; Third Amended Complaint or TAC) pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)). Makere filed a response in opposition to the Motion on December 27 2021. See Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Plaintiff's Full Verified Complaint (Doc. 87; Response). Significantly, this is Allstate's second motion to dismiss in this action. The Court previously granted, in part, and denied, in part, a motion to dismiss Makere's initial Complaint for Employment Discrimination (Doc. 1; Initial Complaint). See Order (Doc. 40; 2021 Order), entered February 8 2021.[3] The background and findings in the 2021 Order are significant to the analysis below and the Court will presume the reader's familiarity with the 2021 Order and adopt its defined terms.
This case arises out of Makere's approximately three-year period of employment with Allstate and its aftermath. As alleged in the Third Amended Complaint, Makere worked for Allstate from November 18, 2013, until he was terminated on August 12, 2016. See TAC ¶¶ 8, 43. Makere, a Black male, alleges that he endured race and sex-based discrimination and harassment from numerous co-workers and supervisors throughout his employment with Allstate. See id. ¶¶ 8, 12-46. He contends that he filed internal complaints of discrimination with Allstate and suffered retaliation as a result. Id. ¶¶ 32-39. Ultimately, Allstate terminated Makere after he failed to pass his ninth actuarial exam, a condition of his continued employment in Allstate's Actuarial Career Program (ACP). Id. ¶¶ 9-10, 38-43. Makere maintains that his termination was discriminatory and alleges that other non-Black employees also failed to satisfy the requirements of the ACP and were not terminated. Id. ¶¶ 44-46.
Following his termination, on June 30, 2017, Makere filed a charge of discrimination and retaliation against Allstate with the FCHR. The parties participated in extensive administrative proceedings on the 2017 FCHR Charge which the Court described in detail in the 2021 Order. See 2021 Order at 8-11. In brief, the FCHR issued a “No Reasonable Cause” determination on December 15, 2017, at which time Makere promptly petitioned the DOAH for review. Id. at 8. After substantial motion practice and a lengthy evidentiary hearing, the AL J ruled against Makere on all claims in a 111-page Recommended Order issued on April 18, 2019. Id. The FCHR adopted the ALJ's factual and legal findings and dismissed Makere's claims with prejudice in a Final Order dated June 27, 2019. Id. at 11. Makere appealed this decision to Florida's First District Court of Appeal, which found no basis to set aside the FCHR's Final Order and issued a decision affirming it on July 13, 2020. Id.
Significantly, Makere alleges that Allstate engaged in several acts of retaliation against him while the administrative matter was pending. See, e.g., TAC ¶ 132; see also Response at 14-15. The first incident of alleged posttermination retaliation concerns a former Allstate employee, Kirk Higgins. See TAC ¶¶ 57-85. Makere's allegations reflect that Higgins, a Black male actuary like Makere, worked at Allstate prior to Makere. Id. ¶¶ 65-67. Although their employment at Allstate did not overlap, Makere appears to believe that Higgins also suffered discrimination during his time there. See id. ¶¶ 65-72. The details are unclear, but it appears that during the discovery phase of the DOAH proceedings, Makere contacted Higgins. See id. ¶¶ 56-57. Makere alleges that Higgins “went on attack in response” by filing “documents aimed at embarrassing [Makere]” and calling the “local police departments to try to dig up dirt on [Makere].” See id. ¶ 57. Makere includes what appear to be excerpts from Higgins' filings in which Higgins states that he had used public information to perform a background check on Makere, discovered that Makere had previously been arrested, and then contacted the police department to confirm that information. Id. ¶ 77. According to the excerpts in the Third Amended Complaint, Higgins acknowledged that he had found no evidence that Makere was prosecuted or convicted based on the prior arrests and stated that he filed the information for the benefit of other potential witnesses seeking protective orders against subpoenas from Makere. Id. Makere characterizes these statements as a “smear campaign.” Id.
Makere alleges that he “believe[s]” Higgins acted at Allstate's behest. Id. ¶¶ 58, 75-77, 85. In support, Makere asserts that Higgins called him on March 26, 2018, and told him that he had recently spoken to Allstate employees, including the employee responsible for terminating Makere, Lisa Henry. Id. ¶¶ 59-60. According to Makere, Higgins told him that Henry had recently made favorable comments about Higgins on a professional networking site. Id. ¶ 61. Makere interpreted Higgins' statement as an attempt to “dissuade [Makere] from litigating his claim against [Allstate].” Id. During this call, Higgins also allegedly told Makere that “he was afraid that [Allstate] would retaliate against him” if he complied with Makere's discovery requests. Id. ¶ 63.
In addition, Makere points to a June 21, 2018 email from Allstate's counsel to Higgins, on which Makere was copied, concerning the DOAH proceedings. See TAC ¶¶ 81-83, Ex. F. According to Makere, Allstate “encouraged” Higgins to file “unlawful” and unauthorized documents on Allstate's behalf and “instructed” Higgins “to avoid writing anything that could negatively impact [Allstate's] accompanying pleading.” Id. ¶¶ 82-83. However, the email itself, which Makere attaches to the Third Amended Complaint, includes nothing more than a statement of Allstate's position on motions that Higgins had filed or intended to file in the DOAH proceedings opposing Makere's discovery requests. Id., Ex. F.[4] Specifically, Allstate's counsel stated that Allstate did not oppose some of the motions and would not object to another so long as it did not interfere with Allstate's discovery efforts. Ex. F.
The next incident of post-termination retaliation is alleged to have occurred when Makere was hit by a car while riding his bicycle in the Spring of 2018. TAC ¶ 92. According to Makere, when he “awoke on the grassy median” after the impact, “he immediately thought [Allstate] was behind it.” Id. ¶ 92. In the Third Amended Complaint, Makere attempts to connect Allstate to this incident in three ways. First, Makere alleges that “[f]rom the outset of the DOAH proceedings, [he] received death threats on the phone; and supplemental taunts through the mail.” See id. ¶ 87. According to Makere, the threats had a “common theme centered around ‘praying to God,'” including a phone call asking, “Do you need someone to pray for your life?” and postcards with similar phrasing. Id. ¶ 88. Makere alleges that Higgins used the same “praying to God” phrase when he attempted to dissuade Makere from continuing his lawsuit. Id. Second, Makere asserts that in November of 2015, an Allstate employee saw Makere on his bicycle after dark in the Allstate parking lot and allegedly cautioned him, “in an ominous tone,” to “‘be careful on [his] bike.'” Id. ¶¶ 29a, 92. Makere interpreted this statement as a threat, which he contends “came to fruition” when he was hit by a car nearly two and a half years later. Id. And third, Makere connects the driver of the car to Allstate because the driver's home was “within 10 minutes” of the Allstate office, “down the street” from the home of an Allstate manager with whom Makere had interacted, and “12 minutes away” from the home of Allstate's former chief executive officer. Id. ¶ 93.
The third incident of purported post-termination retaliation occurred in July of 2018, when Makere's former employer, Genworth Financial, reduced Makere's retirement benefits. Id. ¶¶ 105, 132b. According to Makere, Allstate was behind this reduction. Id. ¶ 112. Makere connects this event to Allstate because Allstate's attorney made “statements” about Genworth during Makere's depositions and at a hearing. Id. ¶ 108. Although Makere does not describe the statements, he appears to maintain that the information had not come from discovery, such that “[i]t was clear that [Allstate] was communicating with Genworth surreptitiously.” Id. ¶ 110. In addition, Makere alleges that he spoke to a benefits coordinator at Genworth who told him that his “dissolved retirement benefits were not part of a company-wide policy,” and that Makere “was the only person she knew who suffered dissolution.” Id. ¶ 111.[5]
Following these purported acts of retaliation, and while the 2017 FCHR Charge was working its way through the administrative process, Makere filed a second charge with the FCHR in 2019. See TAC ¶ 7a. Because it is particularly relevant to the analysis below, the Court sets out in full its account of the 2019 FCHR Cha...
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