Dage v. Time Warner Cable

• Decision Date: 19 October 2005
• Docket Number: No. C-1-04-90.,C-1-04-90.
• Parties: Richard DAGE Plaintiff, v. TIME WARNER CABLE, Defendant.
• Court: U.S. District Court — Southern District of Ohio

395 F.Supp.2d 668

Richard DAGE Plaintiff, v. TIME WARNER CABLE, Defendant.

No. C-1-04-90.

United States District Court, S.D. Ohio, Western Division.

October 19, 2005.

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Leslie Elizabeth Ghiz, Kohnen & Patton LLP, Randolph Harry Freking, Ann Koize Wittenauer, Kelly Mulloy Myers, Freking & Betz, Cincinnati, OH, for Plaintiff.

Paul A. Wilhelm, Greenebaum Doll & McDonald PLLC, Covington, KY, Peter Kevin Newman, Roetzel & Andress, Cincinnati, OH, for Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE PLEADINGS

DLOTT, District Judge.

This matter comes before the Court on Defendant's Motion for Summary Judgment on the Pleadings. (Doc. # 15). For the reasons set forth below, Defendant's Motion is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Original plaintiff Richard Dage¹ ("Dage") sued Time Warner Cable ("Time Warner"), his former employer, claiming retaliatory termination and harassment in violation of the Family Medical Leave Act ("FMLA"), 42 U.S.C. § 2601 et seq., and disability discrimination in violation of Ohio Revised Code ("O.R.C.") § 4112 and Ohio public policy. (Doc. # 1). Time Warner has now moved for summary judgment on all of Dage's claims.

Time Warner hired Dage in November 1998 and terminated him nearly four years later, in September 2002. Dage's position, which at various points in his tenure bore the titles of Product Analyst and Sales and Marketing Analyst, involved the quantitative analysis of billing and other company data for the Sales and Marketing Department (" Department"). Dage reported to Sales and Marketing Vice President Dennis Holzmeier and Marketing Director Tom Dunlea.

A. May 2000 (Dage's first FMLA leave) through March 2002

The events giving rise to the present dispute began in spring 2000, when Dage took the first in a series of FMLA-authorized leaves and — according to Time Warner — also began exhibiting the performance problems that culminated in his termination.² In early May of 2000, according to Time Warner, Holzmeier confronted Dage about mistakes in written work, gaps in his grasp of relevant cable concepts and technical skills, and interpersonal conflicts with other Sales and Marketing staff. Holzmeier also documented these problems in a written warning memorandum dated May 4, 2000. The memorandum was apparently placed in Dage's personnel file, but the employee acknowledgment signature line is blank. See Dage Transcript (hereinafter "Dage Tr."), Ex. 19.

In mid-May of 2000, Time Warner authorized Dage to take approximately six weeks of full-time FMLA leave to help Dage cope with his clinically diagnosed depression. Plaintiff contends that shortly after Dage's return to work on June 23, 2000, Dage's supervisors began to harass and discriminate against him on the basis of his depression and use of FMLA leave. For support, Plaintiff cites Dage's deposition testimony that Holzmeier once threatened, possibly even prior to Dage's first FMLA leave, to terminate Dage if he "ever call[ed] in sick again." (See Doc. # 21 at 3; Dage Tr. at 45-46.) Plaintiff also lists the following events from the period between Dage's first and second FMLA leaves:³

1. In September 2000, Holzmeier directed Dage to begin reporting to Dunlea, a less senior Department manager, instead of directly to Holzmeier. Dage's job title, duties and compensation did not change with the shift in reporting, but Plaintiff contends that Holzmeier intended the reassignment to serve as a subtle demotion. (Doc. # 21 at 3). Time Warner responds that Dage's "performance issues" demanded closer supervision than Holzmeier could provide. (Doc. # 15 at 4.)¶

2. In November 2000, Holzmeier forwarded a joke email entitled "How to Keep a Healthy Level of Insanity" to the Department. See Dage Tr., Ex. 17. The email appears to parody a series of mental illnesses including depression, and Plaintiff suggests Holzmeier intended to harass or discriminate against Dage by circulating it.

3. In February 2001, while handing Dage his bonus check at a company function, Holzmeier allegedly told Dage "I ought to take you out back and punch you." See id. at 71.

4. In March and April 2001, a series of written warnings and notices of verbal warnings were placed in Dage's personnel file. See id. Exs. 20-23. These warnings, like the May 2000 memorandum, are not signed by Dage. Moreoever, Dage testified at his deposition that he did not recall receiving the written notices. See id. at 112-117. Plaintiff further observes that several of the notices are missing information and that the file contains two separate notices, both bearing Dunlea's signature and dated April 9, 2001, that appear to document the same conduct. (See Doc. # 21 at 5; Dage Tr. Exs. 22-23.)

4. In July 2001, Dage had an opportunity to review blueprints for the Department's new office space. (Doc. # 21 at 6.) He discovered that although offices had allegedly been provided for two coworkers at his level, no private office was provided for him. Id. After a several-week email exchange with Dunlea in which Dage noted that his depression made it difficult to concentrate in public space, Dage was assigned a room that had previously been used for storage. Id.; Dage Tr. Ex. 16. He moved some time after the rest of the Department, without help from the private moving company that had assisted the other employees. Id. at 5-7; Dage Tr. at 55-60. At his deposition, Dage testified that it took several weeks to have a personal nameplate installed on the door, and that Holzmeier took to calling him "Storage[y] Room" even after Dage made it clear that he found the nickname offensive. Dage Tr. at 63-66. Dage also stated that the heating in his office was intermittently broken and that Time Warner never successfully fixed the problem. Id. at 61-62.

5. According to Plaintiff, Dage was repeatedly denied the opportunity to participate in a leadership training program, despite the fact that certain Department employees with shorter tenures were allowed to attend. (Doc. # 21 at 7.)

B. April 2002 through July 2002 (Dage's Second and Third FMLA Leaves)

On April 1, 2002, Dage began a month of intermittent FMLA leave to help care for his father, who had been hospitalized with cancer. Dage Tr., Ex. 12. Dage worked half-days during the month of April, apparently to mitigate the impact of his leave on what Plaintiff contends was an ever-mounting workload. (Doc. # 21 at 5, 7.) Dage took additional intermittent FMLA leave in July 2002, to care for his wife and new son after a difficult childbirth. (Doc. # 21 at 7.)

C. August and September 2002 (Dage's Termination)

On August 14, 2002, shortly after returning from his third FMLA leave, Dage skipped a weekly staff meeting Holzmeier had asked him to attend. At his deposition, Dage testified that he was busy helping a coworker with an urgent work matter. In any event, a minute before the meeting was due to start, Dage sent Holzmeier an email explaining that he did not have time for "additional routine meetings" and that Dunlea would "represent" him. Dage Tr., Ex. 24. Two days later, on April 16, 2002, Dage emailed Holzmeier again to say that he had reconsidered this position, and Holzmeier responded with an email thanking Dage. Id. Despite this apparent reconciliation, Dage's personnel file contains a written warning notice, dated September 11, 2002 and signed by Tom Dunlea, concerning the meeting absence. See id., Ex. 26. The file contains a second notice, also dated September 11th and signed by Dunlea, regarding an August 22, 2002 incident in which Dage violated company policy by taking home a proprietary report and then calling in sick the next day, denying the office access to the report. See id., Ex. 25. At his deposition, Dage stated that Holzmeier and Dunlea knew that he was taking the report, as he had often done with other documents, in order to finish working over his faster home computer connection. Id. at 121-22.

On September 11, 2002, the same day his final two disciplinary notices were ostensibly issued, Dage received a six-month review in which Dunlea outlined continued performance problems and recommended that Time Warner terminate Dage's employment. Id., Ex. 27. Holzmeier and another supervisor approved Dunlea's recommendation shortly thereafter, and Dage was fired. (Doc. # 15 at 6.) Dage testified that Dunlea gave him a copy of his six-month review the day it was issued, but that he did not learn about the two apparently contemporaneous disciplinary notices until after his termination. Dage Tr. at 122-25.

D. Procedural Background⁴

Dage sued Time Warner in this Court on February 6, 2004. In his complaint, Dage alleged that Time Warner had subjected him to retaliatory termination and harassment in violation of FMLA and disability discrimination in violation of O.R.C. § 4112 and Ohio public policy. (Doc. # 1.) Time Warner answered on March 3, 2004, denying liability. (Doc. # 3.) Discovery closed on December 1, 2004, and Time Warner brought the present motion for summary judgment on February 18, 2005. (Doc. # 7; Doc. # 15.)

II. JURISDICTION AND STANDARD OF REVIEW

The Court has jurisdiction over Plaintiff's FMLA claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367. Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). On a motion for summary judgment, the moving party has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that can permissibly be drawn from that evidence, must be read in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct....