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Kolcun v. Nationwide Ins. Co.

May 24, 2006


The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Abel


Plaintiff Steven Kolcun ("Kolcun") asserts that Defendant Nationwide Insurance Company ("Nationwide") terminated his employment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., ("ADA"), Ohio Revised Code Chapter 4112, and public policy. (Doc. # # 1, 14, 32, 33). Nationwide has filed a motion for summary judgment on each of Kolcun's claims, Kolcun has filed a response in opposition, and Nationwide has filed a reply. (Doc. # # 23, 28, 35). For the following reasons, the Court DENIES Nationwide's motion on Kolcun's ADA and parallel state disability discrimination claims, but GRANTS the motion with respect to Kolcun's remaining claims. (Doc. # 23).


Kolcun began working for Nationwide in its auditing department on November 19, 1984. (Kolcun Dep. 65, 161). Several years later, Nationwide promoted Kolcun to a claims investigator in the Special Investigations Unit ("SIU"). Id. That job required Kolcun to investigate suspicious property and casualty claims. After Kolcun completed his review of such claims, he was charged with preparing a report outlining his findings and recommendations.

Kolcun forwarded his reports to a claims representative, who would then determine if the claim was legitimate and whether the policyholder was entitled to benefits under the policyholder's plan. (Kolcun Dep. 139-140). Kolcun remained in this position until his termination on August 4, 2003.

Nationwide kept two files on Kolcun. The first was an incident file. The second was a personnel file. Kolcun was aware of the latter; he was not aware of the former until discovery was completed in this case. (Kolcun Dep. 39-42). Kolcun's incident file consisted of several documents. The first was a July 31, 1997 letter from Nancy Smith-Stinson ("Smith-Stinson"), a secretary who worked with Kolcun in the SIU department, to Terry Bradford ("Bradford"), Kolcun's supervisor at the time. (Bradford Dep. 57-60, Ex. 4). The letter highlighted some of Smith-Stinson's interactions with Kolcun that made her feel "uncomfortable." (Bradford Dep. Ex. 4).*fn1 For example, Smith-Stinson wrote that Kolcun asked if he could use her house to "hide out" to do survelliance work on a woman Kolcun alleged was stalking him. Id. Kolcun also asked Smith-Stinson if she had a boyfriend who was home during the day. Id. Next, Smith-Stinson recounted several negative comments Kolcun had allegedly made to her regarding individuals of different races. Id. Smith-Stinson requested that Bradford keep her concerns confidential, and suggested that Kolcun submit documentation to her via fax, as all of the other investigators did, in order to limit Kolcun's personal contact with her. Id. Bradford referred the matter to Nationwide's human resources department, but the situation resolved itself when Smith-Stinson took an extended medical leave. (Bradford Dep. 57, 60; Kolcun Dep. 180). Kolcun did not "hear about" Smith-Stinson's complaint until May 1999, when he applied for a promotion. (Kolcun Dep. 173). A document referring to Smith-Stinson's July 31, 1997 memorandum was incorrectly sent to Nationwide employee Pat Wyatt ("Wyatt") instead of Bradford. Wyatt, a claims investigator, read the document and apparently informed Kolcun of its contents. Id. at 178, 188-190. As a result, Kolcun called Smith-Stinson to ask her about her complaint. Id.; see also Doc. # 28 Ex. 7. When Smith-Stinson declined to speak with him on the topic, Kolcun contacted Robert Smith ("Smith"), his supervisor at that time. Id. at 108, 177.

Smith investigated the matter by speaking with Bradford and Human Resources Manager Lorie Kuyoth ("Kuyoth"). (Doc. # 28 Ex. 6).*fn2 Ultimately, Smith concluded that the matter should not be pursued and he documented his examination of the matter in a May 21, 1999 memorandum that was placed in Kolcun's incident file. Id. That memo summarized Smith's conversations with Bradford and Kuyoth and stated that Bradford described Kolcun as a "ticking time bomb" with an unprofessional, arrogant, and threatening attitude and demeanor. Id. Smith discounted Bradford's comments because of the well-known personality conflict between Bradford and Kolcun. Id.

Smith's document also questioned Bradford's recitation of the events at a meeting that took place shortly before he completed the May 21, 1999 memorandum. Specifically, Bradford told Smith that he had asked Kolcun to leave the meeting because Kolcun had "gone ballistic" at the meeting. Smith contacted O.G. Garrison ("Garrison"), another individual who was present at the meeting, about Bradford's description of Kolcun's behavior. Garrison told Smith that Kolcun had not "gone ballistic" at the meeting, had not raised his voice, and was not asked to leave the meeting. Id. Recognizing the admitted personality conflict between Bradford and Kolcun, Smith declined to further pursue Bradford's comments but he did meet with Kolcun to discuss the importance of professionalism. Id.; see also Kolcun Dep. 193. Consequently, Smith told Kolcun that there was no harassment complaint in his file so Kolcun dropped the matter. (Kolcun Dep. 177). Kolcun did not learn about Smith-Stinson's July 31, 1997 letter until Nationwide produced it in discovery for this matter. Id. at 173.

Contained within his personnel file was a March 21, 2002 "One-Time notice" from Bradford to Kolcun. That document recited a relevant portion of Nationwide's computer usage policy, and further provided, in relevant part:

Steve, ... [y]our excessive and inappropriate use of company equipment and systems including email for personal reasons is unacceptable work behavior and must stop immediately.

You have also gave [sic] another employee [Scott Jeggle ("Jeggle")] permission and unlimited access to use your office computer, your NWIDOM password, your Internet id and password for their [sic] personal use. The other employee was seen using your computer and you were not in the office that day. When the other employee was questioned they [sic] indicated that you were friends and that you had given him your id and password so he could check his e-mails. You have admitted allowing this, despite your knowledge that the employee had his internet access previously revocated [sic] for excessive personal use. Sharing of passwords and allowing others unlimited access to your company equipment, such as your computer, are serious breaches of confidentiality. This is unacceptable behavior and must stop immediately.

This letter is to place you on a One-Time Notice [sic] advising you that you are in violation of company policy. If this behavior or a similar violation is exhibited again during your employment at Nationwide, it will be investigated and if in violation again during employment at Nationwide, termination of your employment could result.

Attached is a copy of the Policy Guide regarding Unacceptable Work Behavior and Misuse of Electronic Communications. We can discuss any questions you have regarding what is inappropriate and appropriate use of the electronic communication system.

(Kolcun Dep. Def. Ex. I; Kolcun Dep. 37-39, 56-57). Both Kolcun and Bradford signed the document on April 8, 2002. Id. Nationwide terminated Jeggle's employment as a result of the incident but Kolcun kept his job.

Approximately one year later, Brian Krawczyk ("Brian") replaced Bradford as Kolcun's supervisor. (Brian Aff. ¶ ¶ 1, 2). In July 2003, two telephone conversations occurred between Kolcun and Brian. Each individual has a different recollection of the calls. The first call happened on July 28, 2003, and the second on July 31, 2002. On August 4, 2003, Brian authored a memorandum that was placed in Kolcun's incident file regarding the calls. (Doc. # 23 Ex. A to Brian Aff). Entitled "Unacceptable Behavior--Steve Kolcun" the memo provided:

On July 28, 2003, I received a telephone call from Special Investigator Steve Kolcun regarding an assignment he received in the Cincinnati market. Steve asked "why the hell' was he receiving a Cincinnati claim. I explained to Steve that he had received the assignment because Investigator Deb Shaw, who customarily handles the Cincinnati Market [sic], had broken her leg and would be out of work for an indefinite time. Steve was very upset about getting the claim, said it fell outside of his "territory" and told me that I should have sent a note out to the unit about Deb. I explained that I had just heard from Deb, and was in a meeting and did not have access to my e-mail, but when I got back into the office, I would advise the rest of the district about Deb's injury. I also explained to Steve that regardless of specific territories, each PH investigator can and would handle claims anywhere in the OH. I advised he was no exception to this practice.

On July 31, 2003, I received another call from Steve. Steve immediately asked again "why the hell" was [he] receiving Cincinnati claims. As I had done a few days prior, I said simply that it was due to Deb's injury. Steve was very angry, became verbally abusive, and began to shout. He very loudly and angrily told me I should hold those claims until Deb's return instead of giving them to him because it was outside of his territory. I immediately warned Steve about his tone of voice. I then advised him we could not "hold" claims for assignment, and his territory is OH. I further explained as I had on the prior Monday, that despite customary territories, all of the investigators could and did take claims anywhere in the state. Despite my warning about his use of profanity, and unprofessional tone, Steve then said, "God damn it Brian, I don't think you understand!" I then advise[d] Steve that his behavior and language was unacceptable , and asked him to come to my office in Gahanna to speak with me in person. Steve said he could not do that because he had an EUO scheduled, and using the same angry tone, then said, "you can't make me come see you anyway." I explained that he was not correct, and that if I asked him to do something, he would need to comply. I then told Steve that as an alternative, he should come to my office on Monday the 4th of August at 9 a.m. to discuss the situation.

Steve's tone and volume of voice remained consistent throughout the entirety of the conversation until the last minute or so, at which point he became slightly more calm. He said he was getting too many Cincinnati claims. I advised that if that was the case, he should have discussed this with me at the outset. I also said that his manner of communicating with me had been unprofessional and unacceptable, and that we would discuss the issue further on Monday. I then called lead Investigator Arthur Hohman, and asked him not to assign any further claims to Steve.

(Doc. # 23 Ex. A to Brian Aff). Additionally, Brian summarized the two conversations in his affidavit. Specifically, Brian stated that during the telephone calls Kolcun "used inappropriate language towards [him] and questioned his work assignments." (Brian Aff. ¶ 3). Brian continued that during the July 31, 2003 conversation, Kolcun "was extremely argumentative and his language was abusive ... Kolcun took strong exception to the fact that he was being asked to cover claims from the Cincinnati area despite providing him with an explanation why he received the claim [sic] and providing him with my expectation that he cover the claims three days earlier." Id. at ¶ 4.

In contrast, Kolcun described the July 28, 2003 call in the following manner in his deposition:

When I called Brian on that Monday, July 28th, I called and asked him, I said, Brian, I just got this Cincinnati claim. Am I the--let me back up a little bit.

Sometimes when we were called to assist in other areas, it was not uncommon that the same assignment would be given to two investigators. The investigator in that area and then also the person outside. Keeping in mind that maybe they need assistance, maybe they were on vacation or whatever. Okay. So it became a practice of a lot of the investigators to check with one another. So I called Debra. I couldn't get an answer from her.

So I called Brian and I said, Brian, I got this claim in Cincinnati, is this right. The guy went off on me. You're an Ohio investigator. You'll go where I tell you, et cetera. I'm not questioning that. I'm just questioning, you gave me an assignment in another area. I'm just making sure that not two of us are working on it. Well, there can't be two of you working on it because Debra is out with a broken leg.

And with that I said, I didn't know that. And I said, is there a note that's been sent out about her breaking her leg and she's going to be off or anything like that. No, I haven't done that. I said, well, don't you think that might be a good idea so that you let the other investigators ...

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