Kittle v. Cynocom Corp., Case No. C2-01-368.
| Decision Date | 22 November 2002 |
| Docket Number | Case No. C2-01-368. |
| Citation | 232 F.Supp.2d 867 |
| Parties | Diane R. KITTLE, Plaintiff, v. CYNOCOM CORP., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Russell Allen Kelm, Law Offices of Russell Kelm-2, Columbus, OH, for Plaintiff.
David Anthony Kadela, Littler Mendelson PC-2, Columbus, OH, for Defendant.
This matter is before the Court on Cynocom Corp's ("Defendant") Motion for Summary Judgment. For the following reasons, Defendant's Motion for Summary Judgment is GRANTED.
Because this matter is before the Court on Defendant's Motion for Summary Judgment, the Court views the facts in the light most favorable to Plaintiff.
Cynocom Corp. ("Defendant") is a privately owned Florida corporation that provides Internet-based software applications. The company markets and develops iAsyst, an Internet based software solution designed to automate an organization's customer service and internal operations. John Calvert, Luis Venegas, John Wilson, and Richard Adrey founded the company, originally under a different name, in 1999. Calvert was the chief technology officer and had developed the technology the company planned to market. Venegas was the vice president of operations, Wilson was the chief executive officer, and Adrey was the chief financial officer.
In 1999, Wilson developed a relationship with Paul Corrigan, a consultant in Columbus, Ohio. Corrigan had contacts with government agencies and large commercial enterprises in the Columbus and Washington, D.C., areas. In order to market iAsyst to these agencies and enterprises, Corrigan suggested that Defendant hire someone in the Columbus area to develop Corrigan's leads. Corrigan suggested Diane R. Kittle ("Plaintiff") for the job.
In December 1999, Defendant hired Plaintiff as its Director of Enterprise and Government Business at a salary of $115,000. Plaintiff was to work out of her home in Columbus and report to Wilson in Florida. At the time, Defendant envisioned two markets for iAsyst: the reseller market and the direct sales market. Plaintiff was hired to develop the direct sales market by developing Corrigan's leads to government agencies and commercial enterprises in Columbus and Washington, D.C. Upon Plaintiff's recommendation, Defendant hired Sasha Mossman, Plaintiff's niece, as Director of Advance Information Technology to assist Plaintiff. In March 2000, Defendant hired John Calia as its Vice President of Sales and Marketing. At that time, Plaintiff began to report to Calia instead of Wilson.
During Plaintiff's tenure as Director of Enterprise and Government Business, she gave presentations to companies and attended conventions in an attempt to develop business for Defendant. Plaintiff followed the leads of Corrigan, but ultimately those leads did not lead to any sales. During her ten months of employment, Plaintiff did not make a single sale. Her failure to make any sales was not entirely her fault. In the spring of 2000, Defendant realized that iAsyst would require further development and that it was not ready for customer use. In fact, iAsyst was not ready until after Defendant terminated Plaintiff. John Calia admits that Plaintiff's inability to make sales was due to problems with Defendant's product and the lack of a product to sell.
Nevertheless, Defendant's officials were frustrated that Plaintiff was unable to make any sales. John Calvert, for example, spent significant time pursuing leads with Plaintiff that did not lead to sales. On two occasions, Calvert flew to attend meetings with Plaintiff and potential customers only to learn that the decision makers at the prospective clients did not have the meetings on their calendars.
Shortly after John Calia was hired in March 2000, Wilson and Calvert advised him that they were ready to eliminate Plaintiff's position because they did not think the direct sales program was working. Calia, however, requested a ninety day period to evaluate Plaintiff's efforts.
Calia ultimately found Plaintiff difficult to work with. She frequently complained to Calia and complained about Calia to other officers of Defendant. On one occasion, Plaintiff became mad because Calia had contacted someone he knew at one of Plaintiff's potential clients without mentioning this contact to Plaintiff. Likewise, Plaintiff complained about the amount of time it took Defendant to hire a new assistant when Mossman left the company in June 2000.
At the conclusion of Calia's ninety day evaluation period of Plaintiff, Calia and Wilson were ready to terminate the Ohio operation. Adrey, however, convinced them to wait and see if either of the two leads Plaintiff was developing at the time would lead to sales.
In May of 2000, Plaintiff suffered from two transient ischemic attacks, which are stroke-like attacks. During these two attacks, Plaintiff experienced a blind spot in one or both of her eyes. After these attacks, Plaintiff was able to perform her regular job functions. Plaintiff and others referred to these attacks as "strokes."
In October of 2000 Plaintiff told John Wilson about her strokes. They had this conversation shortly before an October 25, 2000 business trip to Washington, D.C., to meet with a prospective client. Wilson attended the October 25 meeting and met with Plaintiff and her new assistant, Heather Glenn,1 for breakfast on the morning of the meeting. During this breakfast meeting, Wilson asked Plaintiff questions about her medical condition. He asked Plaintiff if she was embarrassed by the stroke, if she could walk and talk, if she could remember things, and if she could conduct the meeting with the prospective client. Wilson's former wife had suffered a brain aneurysm that caused more significant and debilitating symptoms than Plaintiff suffered from her strokes. About a week before the October 25 meeting, Wilson had a telephone conversation with Glenn in which he told Glenn that he did not want Plaintiff to travel to Washington due to her medical condition. Wilson also told Glenn about the symptoms his former wife had suffered from her brain aneurysm. John Calia learned about Plaintiff's strokes at about the same time that Wilson did, and Calia also did not want Plaintiff to travel to Washington for the October 25 meeting.
On October 26, 2000, the day after Plaintiff, Glenn, and Wilson returned from their meeting in Washington, Calia sent Plaintiff an e-mail message requesting that she refrain from working until she obtained a written release from her physician declaring her fitness to return to work. Although Plaintiff obtained the medical release she was terminated on October 27, 2000 even before she was able to deliver the release to Defendant.
In September 2000, Defendant had learned that iAsyst was still not ready for deployment to customers. The company sought ways to reduce its spending. Calia proposed the elimination of the Ohio direct sales operation as one means of reducing costs within his department. The Ohio operation was expensive because Defendant paid Plaintiff $115,000 per year and paid her assistant Glenn $50,000 per year. The costs of travel to meet with prospective clients were also high. Wilson and others at Defendant determined that none of Plaintiff's prospective clients were strong prospects and that Defendant should focus on the reseller market and eliminate its costly and fruitless direct sales efforts.
At the same time that Defendant terminated Plaintiff's position, Defendant also terminated Plaintiff's assistant, Glenn. Defendant did not replace Plaintiff with a new employee, but rather eliminated Plaintiff's position altogether. Over the following two months, Defendant terminated four additional employees. Although the company once employed 31 people, it now employs only nine, including two of the founders who have been deferring their salaries since November 2000.
Plaintiff filed her Complaint and Jury Demand with this Court on April 20, 2001. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Plaintiff is a citizen of Ohio and Defendant is a Florida corporation with its principal place of business in Florida. The amount in controversy is in excess of $75,000.
Plaintiff's Complaint alleges two claims. Count One alleges wrongful termination based on disability in violation of Ohio Revised Code sections 4112.01(A)(13), 4112.01(A)(16), 4112.02(A), and 4112.99. Count Two alleges age discrimination in violation of Ohio Revised Code sections 4112.02(I) and 4112.99. By stipulation of both parties, Plaintiff's Count Two was dismissed with prejudice on July 1, 2002, leaving only her disability discrimination claim.
Defendant filed a Motion for Summary Judgment on June 4, 2002. The Court now decides that motion.
Summary judgment is appropriate "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). In response, the nonmoving party must present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir.1993). "[S]ummary judgment will not lie if the dispute is about a material fact that is `genuine,' that is, if the evidence is such that a...
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