United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
J. LODGE UNITED STATES DISTRICT JUDGE.
before the Court in the above entitled matter is Home Depot
U.S.A., Inc. and THD At-Home Services, Inc.'s (THD)
(collectively Defendants) Motion for Summary Judgment. Dkt.
45. The matter is fully briefed and ripe for the Court's
fully reviewed the record, the Court finds that the facts and
legal arguments are adequately presented in the briefs and
record. Accordingly, in the interest of avoiding further
delay, and because the Court conclusively finds that the
decisional process would not be significantly aided by oral
argument, this matter shall be decided on the record before
this Court without oral argument.
Ken Eau Claire was employed as the Selling Sales Manager
(SSM) for the Boise area's five Home Depot stores.
Plaintiff maintains his employer was Defendant Home Depot
U.S.A., but has not provided any evidence that establishes
this fact. Rather, THD acknowledged in its Answer to the
Complaint that Eau Claire's employer was THD, not Home
Depot U.S.A. The Amended Complaint names both Home Depot
U.S.A. and THD as defendants. Dkt. 40.
March 26, 2012, Eau Claire was hired by THD to sell siding,
roofing, windows, etc. to Home Depot customers. A Home Depot
customer requests information about such contract services
and then a SSM or Sales Consultant working under a SSM makes
an appointment to meet with the customer to prepare and
estimate and try to close the sale on such services. Eau
Claire reported to the Branch Sales Manager, Michael Snyder.
As SSM, there were times when Eau Claire had Sales
Consultants work under him in which case he would be entitled
to a portion of the sales generated by the Sales Consultants
that worked under him.
undisputed that selling home repair/replacement contract
services is a highly competitive market in the Boise area.
Claire admits he suffered from vertigo since 2010. In
September of 2014, Eau Claire experienced a fall while
standing in a parking lot. On October 7, 2014, Eau Clare
called Human Resources at ¶ 1-800 number to inform them
he had seen a doctor for his vertigo symptoms and the doctor
recommended he avoid driving, climbing ladders and other
activities required in his job. Eau Claire indicated he had a
referral appointment to another doctor for October 22nd, but
that he had not made the appointment yet. The Human Resources
person on the phone provided Eau Claire with other 1-800
numbers and indicated that paperwork would be sent to him to
complete. Eau Claire maintains that when he called he was not
asking for time off work and it was Human Resources that
determined he should be off work for one month. The one month of
leave was pursuant to the Family Medical Leave Act (FMLA), 29
U.S.C. § 2601 et seq.
to taking FMLA leave, Eau Claire had been disciplined three
times for poor close rates on sales. A close rate is the
percentage of customer service appointments that result in
actual sales. THD had provided coaching for Eau Claire in
June and July of 2014 to improve his close rates. On
September 5, 2014, Eau Claire received a Final Counseling
Notice for his low sales.
time Eau Claire was told he was being placed on FMLA leave
for a month, he was the only THD sales representative in the
Boise area. He did not have any Sales Consultants working
under him at the time nor did he have anyone to cover his
scheduled customer appointments for the next thirty days. Eau
Claire called THD's Call Center and spoke with Antonio
Lewis. Eau Claire informed Lewis he was going on a leave of
absence and asked Mr. Lewis to cancel all of his appointments
for the next 30 days and reschedule them for after his
return. Because Eau Claire was a SSM he had the requisite
authority to instruct Mr. Lewis to make the requested changes
to the appointment calendar.
Claire maintains he took this action of canceling all his
appointments because there was no one to cover for him and
THD had not sent sales consultants to help cover his area in
the past. Eau Claire does not deny he did not notify his
supervisor before canceling all the appointments nor did he
discuss a plan for coverage with his supervisor. Eau Claire
states there was no written policy on what an employee should
do when he is put on FMLA leave, so his actions were not
violations of any THD policy.
Claire acknowledged in his deposition that canceling
appointments and even rescheduling appointments at least 30
days out, was not good customer service and could result in
lost sales opportunities.
receiving email notification of Eau Claire's leave from
the Human Resources department at approximately 1:00 p.m. on
October 7, 2014, Branch Sales Manager Snyder, began working
on finding coverage for Plaintiff's customer
appointments. Snyder called up Eau Claire's calendar of
appointments on his computer. He took a screen shot of the
appointments and took steps to set up coverage for the
appointments by Sales Consultant David Wright who worked in
the Portland market under SSM Al Hackett.
Snyder logged back on to discuss the calendar with another
employee on October 8th, the appointments were gone from the
computer system (apparently this occurred after Eau
Claire's call to the Call Center). Snyder scrambled to
try to recreate Eau Claire's calendar of appointments
based on his screen shot of the earlier calendar and
scheduled another SSM or Sales Consultant to attempt to
reschedule appointments with customers. Sales Consultant
David Wright, from another market area, was able to recover
some of the appointments, but most of the appointments were
lost. Snyder considered Eau Claire cancellation of all his
appointments for the next thirty (30) days a major work
violation of THD's customer service policy. Snyder
believed the cancelled appointments had resulted in lost
sales as well as some damage to Home Depot's reputation
for excellent customer service.
undisputed that pursuant to the Employee Handbook, customer
service is the number one priority for all employees. Dkt.
48-18. Eau Claire maintains a customer service violation can
be either a major or minor violation depending on the
conduct. “Major violations are those behaviors that are
so serious in nature that they typically warrant immediate
termination upon the first offense; however, a final warning
may be appropriate depending on the circumstances and
behavior at issue.” Id. Minor violations are
those behaviors that although not permitted, are generally
addressed through the progressive disciplinary process which
is a four step process of coaching, counseling, final warning
and termination. Id. The Employee Handbook also
states “[m]anagers have the discretion to determine
what other behaviors are violations, and what discipline is
determined that based on the violation of Home Depot's
policy on customer service, Eau Claire should be immediately
terminated for cancelling/rescheduling all his appointments.
Snyder was advised by Human Resources Manager Sharon Lewis
that Plaintiff could not be terminated while he was on FMLA
leave because she needed to complete an investigation
regarding Snyder's allegation of a violation of the
customer service policy and this could not be completed until
Eau Claire returned to work and could be interviewed. When
Plaintiff returned to work, Ms. Lewis investigated
Snyder's concerns by reviewing documents related to the
customer appointments and interviewing employees that
included Snyder, Eau Claire and Antonio Lewis.
Claire called to return to work on November 7, 2014. He was
returned to active status on November 8, 2014, but he was
informed THD needed a release from his doctor to return to
work. A release from Eau Claire's doctor dated November
10, 2014 was faxed to THD November 17, 2014. Eau Claire began
working again on or about November 18, 2014.
Claire returned to his same position as SSM and his
compensation was the same as before he went on leave. Eau
Claire maintains his computer access was not the same when he
returned. He claims he had Sales Consultant access, but did
not have SSM access to the calendar. THD acknowledges based
on the Eau Claire's unilateral canceling of his
customer's appointments when he went on leave, his
computer access was limited to a Sales Consultant access
which still allowed Eau Claire to enter and manage his
customer appointments onto the system. Since Eau Claire did
not have any Sales Consultants working under him when he left
or when he returned, THD maintains his limited computer
access did not impact his ability to fulfill his job duties.
Eau Claire maintains his computer access restricted him from
acting as a SSM but does not explain why since he also admits
he had no Sales Consultants under him.
time Eau Claire returned to work, SSM Hackett out of Portland
was still assigned as the manager and there was still a Sales
Consultant from another market working under Hackett to cover
appointments. Snyder also maintains Plaintiff's access
was restricted to Sales Consultant access because SSM Hackett
had sales manager access as he was still ...