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Claire v. Home Depot U.S.A., Inc.

United States District Court, D. Idaho

February 3, 2017

KEN EAU CLAIRE, Plaintiff,
HOME DEPOT U.S.A., INC., THD AT -HOME SERVICES, INC., and DOES 1-10, Defendants.



         Pending 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 consideration.[1]

         Having 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.


         Plaintiff 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.

         On 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.

         It is undisputed that selling home repair/replacement contract services is a highly competitive market in the Boise area.

         Eau 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.[2] The one month of leave was pursuant to the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.

         Prior 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.

         At the 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.[3]

         Eau 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.

         Eau 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.

         Upon 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.

         When 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.

         It is 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 appropriate.” Id.

         Snyder 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.

         Eau 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.

         Eau 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.

         At the 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 ...

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