United States District Court, C.D. Illinois
SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE
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.
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.
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,
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.
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.
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.
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.
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.
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.
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 ...