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Ronald Ross v. Continental Tire of Americas

April 16, 2013


The opinion of the court was delivered by: Juan R. Sanchez, J.


Plaintiff Ronald Ross brings this action against his former employer, Continental Tire of Americas, LLC (Continental), and former supervisor, Kevin Gilhuly, alleging violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Ross alleges Defendants unlawfully interfered with his rights under the FMLA, and retaliated against him for taking FMLA leave. Defendants have filed a motion for summary judgment on all claims. For the following reasons, Defendants' motion will be granted.


Continental hired Ross on February 4, 2008, as a Car Dealer Business Development Manager. In 2010, Continental changed its organizational structure, and Ross became an Area Dealer Manager. In February 2011, Ross was promoted to Area District Manager-3 (ADM3), the highest field sales position with Continental, resulting in an increase in his responsibilities. Following his promotion, Ross began reporting directly to Gilhuly, a Regional Manager.

In the summer of 2011, Gilhuly reported problems with Ross's performance to Gabrielle Alexander in Continental's Human Resources (HR) Department. On August 17, Gilhuly, Alexander, and other personnel reviewed Ross's performance during a Human Resource Development Meeting. There was discussion at the meeting regarding Ross's difficulty with his largest client, Reliable Tire, including the fact that Rich Betz, the owner of Reliable Tire, had told Gilhuly he believed Ross did not understand his business and was not adding value to it. Based on Ross's difficulties with this client and other perceived deficiencies, Ross was given a rating of "not meeting expectations." As a result of this rating, Continental developed a performance improvement plan (PIP) for Ross, to make him aware of his areas of deficiency.*fn2

Gilhuly drafted the PIP in consultation with Alexander and another HR employee, Amanda Powell. Ross first learned of the impending PIP in September 2011, when he asked Gilhuly about his job performance. Gilhuly informed Ross he was not meeting expectations and a PIP was in progress without providing further detail. Gilhuly informed Alexander of this conversation.

On October 11, 2011, Gilhuly told Ross he wished to meet with him the following morning to conduct his annual review and, after the review, Ross would meet with HR to go over his PIP. In response to this conversation, Ross prepared a memorandum, of his own accord, outlining a six-month plan of action that acknowledged his deficiencies and highlighted ways to improve his performance. Ross sent this memo to Gilhuly in advance of their meeting. The next morning, Ross and Gilhuly met for Ross's annual review. Gilhuly identified specific areas for improvement, including program understanding, analytical skills, call preparation, meeting more frequently with key customers, financial analysis, communicating clear and concise messages during sales calls, and better preparation. Gilhuly advised Ross his overall performance evaluation rating was "does not meet expectations."

Later in the morning on October 12, Ross met with Gilhuly and Powell to review his PIP. The PIP consisted of a memorandum from Gilhuly summarizing the areas in which Ross's performance was deficient, and setting forth specific guidelines to address the identified problems. The PIP did not have a set end date. Rather, the PIP stated Continental would "discuss [Ross's] progress against these expectations mentioned above every 30 days for 90 days from the day of issuance [of the PIP]. At that time, [Continental] will review your job performance [and] determine what additional actions, if any, will be necessary." Defs.' Mot. for Summ. J. Ex. L. Thus, it was contemplated the PIP would remain in effect for a minimum of 90 days, with any possible extension dependent on Ross's progress towards meeting the established goals.

On November 6, 2011, Ross sent Gilhuly and Powell an email, advising them he had been diagnosed with prostate cancer. He also informed them he had further testing scheduled for November 9, and would be developing a specific treatment plan as soon as possible. This was the first formal notification to Continental of Ross's illness. Ross spoke with Gilhuly on November 11, providing him with additional information regarding his health status and treatment plan.

On December 5, 2011, Alexander emailed Ross; Gilhuly; Powell; Christ Charity, the National Sales Manager; and Jim Sicking, the Director of Independent Dealer Sales, stating "the company would do everything [it] can to support [Ross] during this time," and noting that "[o]bviously, based on [Ross's] health and treatment plan the PIP timetable may need to be adjusted." Defs.' Mot. for Summ. J. Ex. W. Gilhuly responded to this email the following day, stating "Ron had definitely made progress on most of the areas identified in the PIP. However, there is still work to be done." Id. Gilhuly further stated "[he] would have no issue with adjusting the PIP timetable to give Ron more time to deal with the health issues." Id. On December 19, 2011, after receiving an update from Ross, Gilhuly sent Charity and Sicking an email advising them of Ross's treatment schedule, explaining that Ross would be unable to attend the National Sales Conference, and suggesting they consider pushing the PIP timetable back by at least 30 days, such that the PIP would end no earlier than February 10, 2012. Gilhuly forwarded this email to Alexander the next day asking if she agreed with adjusting Ross's PIP end date. On January 1, 2012, Alexander emailed Gilhuly agreeing that the PIP end date should be adjusted.

On December 22, 2011, Ross emailed Gilhuly, Alexander, and benefits coordinator Jean Harvel to advise them of his chosen treatment plan and dates of planned FMLA leave. The next day, Ross emailed Gilhuly asking for clarification regarding the end date of his PIP. Ross requested the PIP end on January 12, 2012, so as to be resolved before he went out on medical leave; however, neither Gilhuly nor anyone else at Continental ever agreed to this request or took any action to conclude the PIP. There is no evidence of a 90-day or final review of Ross's PIP in January 2012.

Ross requested and was granted FMLA leave to begin on January 18, 2012. He returned to work on March 19, 2012. While on leave, Ross continued to receive his regular compensation and insurance benefits. Ross does not contend he failed to receive any benefits to which he was entitled during his leave of absence. He returned to work in the same position he held when he left, ADM3. Because his PIP had not been concluded before his FMLA leave, the PIP remained in place upon his return.

Twice while on leave, on February 17 and 23, 2012, Ross emailed Gilhuly regarding his PIP status. On February 23, Gilhuly responded that the PIP could not be changed or addressed until Ross returned to work full-time. Also during this time period, Ross requested to return to work on light duty with an accommodation of no driving. Ross's request was denied as a significant proportion of his responsibilities involved driving. Alexander told Ross that Continental would await his full medical release before allowing him to return to work.

During the week of March 14, 2012, Gilhuly, knowing Ross was due to return to work on March 19, met with Alexander to discuss the drafting of a PIP Addendum. On April 11, 2012, Gilhuly received approval from HR regarding the Addendum. On April 12, 2012, Ross received a memorandum from Gilhuly entitled "ADM3 Performance-Addendum to October 12, 2011 PIAP," in which Gilhuly stated he was going to delay the final review of Ross's performance against the original PIP for at least 60 days. Gilhuly stated he wanted to provide Ross with time to familiarize himself with the new 2012 programs ...

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