Koren v. Ohio Bell Tel. Co.

• Decision Date: 14 August 2012
• Docket Number: Case No. 1:11–CV–2674.
• Citation: 894 F.Supp.2d 1032
• Parties: Jason W. KOREN, Plaintiff, v. The OHIO BELL TELEPHONE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

894 F.Supp.2d 1032

Jason W. KOREN, Plaintiff,

v.The OHIO BELL TELEPHONE COMPANY, Defendant.

Case No. 1:11–CV–2674.

United States District Court,

N.D. Ohio.

Aug. 14, 2012.

Richard N. Selby, II, Dworken & Bernstein, Painesville, OH, for Plaintiff.

Donald C. Bulea, Kerin L. Kaminski, Giffen & Kaminski, Ninth Street, Cleveland, OH, for Defendant.

OPINION & ORDER [Resolving Doc. No. 25 ]

JAMES S. GWIN, District Judge.

In this case, Defendant The Ohio Bell Telephone Company fired Plaintiff Jason W. Koren after Koren missed work for his father's funeral. Koren (who suspects Ohio Bell really fired him because he's homosexual and took his husband's last name) now brings gender-discrimination and disability-discrimination claims against Ohio Bell. Ohio Bell has moved for summary judgment, [ Doc. 25 ], and Koren has filed an opposition to that motion, [ Doc. 27 ]. For the following reasons, the Court DENIES Ohio Bell's motion for summary judgment.

I.

A. 2000–2006: Koren's First Employment with Ohio Bell

Jason Koren was first employed at Ohio Bell ¹ from 2000 to 2006, and had climbed the employment ranks to a manager position. During these years of employment, Koren's legal name (and the name he went by) was Jason Cabot. Koren's co-workers all knew that he was homosexual, including fellow manager Kim Miceli—she and Koren had “a good working relationship.” [Docs. 25–3 at 1; 24–1 at 12; 27–2 at 24].

Koren claims that prior to ending his first employment with Ohio Bell, he had made it known to his co-workers that he had been suffering from AIDS. (Some of Koren's co-workers deny that they had knowledge of Koren's condition in 2006. ²) Koren left Ohio Bell in 2006; he believed that he left on “good terms.” [ Doc. 24–1 at 5].

B. 2009: Koren's Second Employment with Ohio Bell

On December 31, 2008, Koren got married in Massachusetts and took the name of his husband. Ohio Bell rehired Koren on June 8, 2009, as a sales consultant (a “Limited Term” employee position), and after he was rehired Jason Cabot legally changed his name to Jason Koren. [ Id. at 3–5].

Prior to being assigned to a sales floor, Koren completed three months of company training. Although the first few days proceeded without incident, Koren says that things changed after the trainer learned about his background—and his sexual orientation. [ Id. at 6]. Koren says that he was stereotyped and that attention was brought to the fact that he had changed his name by awarding him two training completion certificates: one as Jason Koren and then, immediately afterwards, one as Jason Cabot. [ Id. at 6–7].

After training, Koren was assigned to a sales floor. Koren says that he was immediately treated unfairly by being initially denied a Sales Coach. [ Id. at 8–9]. However, after “[r]oughly three or four weeks,” Koren was assigned to Sales Coach Anitra Bailey. [ Id. at 9]. Bailey reported to the Call Center Sales Manager, James Tench, who was a co-worker of Koren's during the 2000–2006 employment stint. Miceli, as the Call Center Attendance Manager, was also Koren's superior. Both Miceli and Tench reported to the General Manager, Scott Willis, who had never met Koren.

Koren has other complaints about the way that he was treated during his second employment at Ohio Bell: (1) not being allowed to lead team meetings; (2) having a customer's positive recommendation posted on the bathroom urinal wall rather than in the hallway with other recommendations; and (3) being denied access to an intranet pin that would allow him to view Ohio Bell job postings for managerial positions.

Koren also says that his relationship with Miceli took a turn for the worse once he was assigned to a sales floor. Koren says that Miceli began calling him Cabot, and he told her that was no longer his name and he preferred Jason or Mr. Koren. Then, according to Koren, Miceli told him that she would continue to call him Cabot because she refused to recognize his marriage or his name change. After that, Miceli would go out of her way to refer to him as Cabot. Although Miceli claims that she does not recall a conversation in which Koren informed her that he would like to be called Cabot, she admits that it may have occurred. Regarding same sex marriages, Miceli says that she “would never say that [she] would not recognize anything like that.” [ Doc. 27–2 at 22].

Koren filed a union grievance against Miceli because she called him Cabot. Miceli claims that she settled the grievance by agreeing to call him Mr. Koren, but Koren says that Miceli called him Cabot “up until the day [he] left.” [ Doc. 24–1 at 14].

When he worked for Ohio Bell the second time, Koren says that he needed no additional accommodations relating to the fact that he had AIDS. Koren did, however, take medicine that could require more frequent bathroom breaks. Pursuant to Miceli's instructions and Ohio Bell's company policies, Koren produced a medical note to cover these frequent bathroom breaks in case they were to occur at work.

C. Koren's Absences

In September 2009, Koren's father passed away; as a result, Koren missed nine days of work. Pursuant to Miceli's instructions, Koren called off work each of the nine days he was absent. During the time he was away from work, Koren also kept in contact with his union benefit representative, Colleen Moughan. Koren claims that Moughan informed him that he would get excused time off for the funeral. [ Id. at 20].

Ohio Bell's Collective Bargaining Agreement indicated which employees were entitled to excused bereavement time off. See [ Doc. 25–6 ]. Miceli reviewed the Collective Bargaining Agreement and determined that Koren had not been with Ohio Bell long enough to be entitled to any excused bereavement days. But after consulting with Tench and the legal department, Miceli decided Koren was entitled to two excused, unpaid bereavement days. [ Doc. 25–3 at 2].

In the end, Ohio Bell assessed Koren with seven unexcused absences. On October 5, 2009, Koren's Sales Coach, Anitra Bailey, signed the document placing Koren on Final Written Warning, in accordance with Ohio Bell's attendance policy. [ Doc. 25–8 at 1]. This warning carried no further discipline, and “Koren was eligible to be removed from Final Written Warning on March 30, 2010 if he complied with the [Attendance] Policy.” [ Doc. 25–2 at 2–3].

D. Koren's Termination

On October 23, 2009, Ohio Bell sent a letter to the employee's union confirming an agreement to “convert” certain employees who had a “satisfactory rating in performance and attendance” to “Regular Full Time Sales Consultants.” See [ Doc. 25–10 ]. The conversion applied to employees in Limited Term positions who had been hired in 2009, including Koren. However, Ohio Bell would terminate limited Term employees with “an unsatisfactory rating in performance and/or attendance.” [ Id.]. Scott Willis, after conferring with Ohio Bell's Labor and Human Resources Departments, determined that the cut-off for satisfactory attendance rating would be four unexcused absences. [ Doc. 25–5 at 2]. Neither Tench, Miceli, nor any other managers from Koren's call center were involved in the decision to terminate Limited Term employees with four or more absences. [Docs. 25–5 at 2; 25–3 at 4; 25–2 at 3]. Because of his seven unexcused absences, Koren was not converted to a regular sales consultant; Ohio Bell terminated him on October 30, 2009. [ Doc. 25–5 at 3].

E. Procedural History

Koren brought this case against Ohio Bell, asserting four causes of action: (1) discrimination in violation of the Americans with Disabilities Act; (2) disability discrimination in violation of the Ohio Civil Rights Act (OCRA); (3) gender discrimination in violation of Title VII of the Civil Rights Act of 1964; and (4) gender discrimination in violation of the OCRA. Ohio Bell has moved for summary judgment on all of Koren's claims and argues that Koren's termination was unrelated to his disability, that there is no evidence that Koren's termination was based on his gender, and that Koren's termination was based on legitimate, nondiscriminatory reasons. See [ Doc. 25 ].

II.

Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 56(a). The moving party bears the initial burden to show the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden is met by showing the court that there is an absence of evidence on a material fact on which the nonmoving party has the ultimate burden of proof at trial. Id. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party to “come forward with some probative evidence to support its claim.” Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994). It is not sufficient for the nonmoving party merely to show that there is some existence of doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In deciding a motion for summary judgment, the Court “considers the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmoving party.” LensCrafters, Inc. v. Robinson, 403 F.3d 798, 802 (6th Cir.2005) (citations omitted).

III.

A. Disability Discrimination

Ohio Bell first argues that it is entitled to summary judgment on Koren's federal and state-law disability-discrimination claims because Koren cannot establish that Ohio Bell had knowledge of Koren's disability.³

For Koren to establish his prima facie Americans with Disabilities Act discrimination claim through indirect evidence, he must establish that, among other things, “the employer knew or had reason to know of the [his] disability....” ⁴Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir.2011) (internal quotation marks omitted)...