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Bohichik v. Time Warner Cable Inc.

December 4, 2006

GEORGE BOHICHIK, PLAINTIFF,
v.
TIME WARNER CABLE INC., DEFENDANT.



The opinion of the court was delivered by: Judge Marbley

OPINION AND ORDER

I. Introduction

This matter is before the court on Defendant's Motion for Summary Judgment. Plaintiff has not responded to Defendant's Motion for Summary Judgment. For the following reasons the Court GRANTS Defendant's Motion for Summary Judgment.

II. Background

A. Facts

Plaintiff began his employment at Time Warner Cable, Inc. ("TWC") on March 10, 1986. He first worked as a Direct Sales Representative and then, beginning in March 1989, as a Commercial Sales Representative. His primary employment function consisted of selling TWC's cable services to apartments, hotels, and other multi-dweller establishments. It is uncontested that over a period of eight years, dating from 1992 to early 2002, Defendant reprimanded Plaintiff for a poor job performance. Defendant rebuked Plaintiff for, among other things, having poor organizational skills, lacking customer service skills, and failing to carry out management assigned tasks.

It is further uncontested that in the five months preceding his termination, Defendant issued three written reprimands to Plaintiff, two of which included specific requirements that TWC required Plaintiff to adhere to in the subsequent months. Finally, after Plaintiff failed to achieve any units out of a thousand-unit sales goal set for him*fn1 , Defendant terminated him on January 4, 2002. Defendant subsequently filed this age discrimination action on March 11, 2003.

B. Procedural History

Plaintiff originally filed the present action under case number 2:03-cv-00218-ALMNMK on March 11, 2003. After the parties completed discovery and while the present motion for summary judgment was pending, both parties consented to dismiss the case without prejudice on August 17, 2004. Plaintiff subsequently refiled this action on December 3, 2004. According to the preliminary pretrial order issued on May 4, 2005, discovery was due by October 31, 2005. Motions for summary judgment were due by November 30, 2005. Defendant filed the present motion for summary judgment on November 29, 2005. Plaintiff's response was due on December 23, 2005. Because Plaintiff's attorney withdrew on December 2, 2005, this Court granted a motion to stay the case until January 30, 2006. On April 17, 2006, this Court issued a second order extending the time for the Plaintiff to respond to Defendant's Motion for Summary Judgment. The new response due date was May 17, 2006. Plaintiff has failed to respond.

III. Standard of Review

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. Vatrett, 477 U.S. 317, 322-23 (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 reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the nonmoving party).

In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In responding to a motion for summary judgment, however, the nonmoving party "may not rest upon its mere allegations ... but ... must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); see Celotex, 477 U.S. at 324; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1995).

IV. ...


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