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Hickey v. Protective Life Corp.

United States District Court, C.D. Illinois

December 17, 2019




         This matter comes before the Court on Defendant Protective Life Corporation's (Protective Life) Motion for Complete Summary Judgment and Brief in Support Thereof (d/e 16) (Motion). The parties have consented to proceed before this Court. Notice, Consent, and Reference of a Civil Action to a Magistrate Judge and Reference Order entered July 29, 2019 (d/e 21). This Court further gave notice to the parties that the Court may decide the Motion on a ground not raised by the parties and gave the parties opportunity to submit additional briefing in response to the notice. Opinion entered September 17, 2019 (d/e 25)(Rule 56(f)(2) Notice); see Fed.R.Civ.P. 56(f)(2). The parties have completed their supplemental briefing in response to the Rule 56(f)(2) Notice. For the reasons set forth below, the Motion is ALLOWED. Defendant Protective Life is granted summary judgment in this case.


         For purposes of summary judgment, the Court must view the facts in a light most favorable to Plaintiff Nathan Hickey. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When viewed in that light, the parties' submissions show the following.

         On November 8, 2015, Protective Life hired Hickey as an Account Executive. Hickey worked in the Asset Protection Division (Asset Protection or ADP). Asset Protection sold warranty and insurance products to automobile purchasers through automobile dealerships (Dealerships). The products included vehicle service contracts, automobile total loss insurance, credit life insurance, and credit disability insurance (Products). Dealership employees made the direct sales to automobile purchasers. Asset Protection Account Executives worked with existing dealership accounts to increase sales of Products and also secured new accounts. Motion, Statement of Undisputed Facts ¶¶ 1, 3.[1]

         During his tenure at Protective Life, Hickey reported to Regional Sales Manager Chris Courtney. Courtney reported to Regional Vice President Matt Keller. Keller reported to Divisional Vice President Kevin Hausch. Hausch reported to Vice President of Dealer Sales Tim Blochowiak. Motion, Statement of Undisputed Facts ¶ 10.

         Shortly after beginning his employment at Protective Life, Hickey received Protective Life's Employee Handbook (Handbook) and Code of Business Conduct (Code). Hickey signed a form acknowledging receipt of the Handbook and Code at the time. Protective Life also maintained policies on leave, including bereavement, Paid Time Off (PTO), and FMLA Leave. Protective Life's policy on internal applicants for jobs within Protective Life stated, “Employees who have been in their current position for less than one (1) year or who are not meeting expectations in their current position . . . are not eligible to apply for posted jobs.” Motion, Statement of Undisputed Facts ¶¶ 11-13; Motion Exhibits (d/e 17), Exhibit 7, Protective Life Paid Time Off Policy; and Exhibit 9, Protective Life FMLA Leave Policy.

         Protective Life initially assigned Hickey a sales territory that included an area from Bloomington, Illinois, to southern Illinois and parts of western Missouri. Protective Life assigned Hickey three existing accounts: Jamie Auffenberg's dealerships, Chris Auffenberg's dealerships (collectively the Auffenberg Accounts), and the Ike Honda dealership (Ike Honda Account) (all three collectively referred to as the Existing Accounts). Protective Life also allowed Hickey to prospect for business anywhere in the United States. The Auffenberg Accounts were larger than the Ike Honda Account. The Existing Accounts were anywhere from an hour to three hours' drive from Hickey's home. Motion, Statement of Undisputed Facts ¶¶ 7-9.

         On September 30, 2016, Hickey notified his superiors by email that he might need time off to care for his ailing grandmother. Courtney forwarded the email to Protective Live Human Resources employee Anne Witte. Witte sent Hickey information regarding his leave options, including PTO, bereavement, and FMLA Leave. Motion, Statement of Undisputed Facts ¶ 20-22.

         On November 8, 2016, Hickey's grandmother died. November 8 was also the first anniversary of the commencement of Hickey's employment at Protective Life. Hickey became eligible for FMLA Leave once he completed his first year of employment. Motion, Statement of Undisputed Facts ¶¶ 20-24.

         On or about November 16 or 17, 2016, Hickey sought FMLA Leave because he was having issues with anxiety and depression. Protective Life ultimately approved 12 weeks of FMLA leave until February 17, 2017. Motion, Statement of Undisputed Facts ¶¶ 26-27, 34.

         While Hickey was on leave, his supervisor Regional Sales Manager Courtney completed reviews of Hickey's employment performance. Courtney completed Hickey's “4th Quarter Goals Check-In” (4th Quarter Check-In”) and Hickey's 2016 Overall Performance Ratings (2016 Rating). Courtney marked every business goal on Hickey's 4th Quarter Check-In as “not started.” On Hickey's 2016 Rating, Courtney rated Hickey's overall performance as “Inconsistent.” A rating of Inconsistent was defined as:

Employee meets some performance expectations but may have difficulty with consistency or in meeting all performance expectations. May be new to the role or have areas where they demonstrate a lack of skill and/or experience. May require assistance from others to ...

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