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Hickle v. American-Multi Cinema, Inc.

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

November 2, 2017

JARED HICKLE, Plaintiff,

          Jolson Magistrate Judge.



         This matter is before the Court upon the Motion of Defendant American Multi-Cinema, Inc. (“AMC”) for Summary Judgment on Plaintiff's claims for violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) and Ohio Rev. Code § 4112.02. (Doc. 32). The motion is fully briefed and ripe for disposition. For the following reasons, AMC's Motion is GRANTED IN PART and DENIED IN PART.


         A. Plaintiff's employment with AMC

         Plaintiff Jared Hickle began employment with AMC in 2004, initially as part of the “film crew” staff, and then advanced to Operations Coordinator in 2006, to Hourly Manager in 2009, and to Kitchen Manager at AMC's Easton Theater in Columbus, Ohio in 2013. (Doc. 29-1, Hickle Dep. at 66, 91, 113, 116). Concurrently, in 2008, Plaintiff joined the Ohio Army National Guard and continued to serve in the military throughout the remainder of his employment with AMC. (Id. at 57, 61). Plaintiff's military service required him to take time off from his work with AMC, including a six-month period in 2008 for basic training and advanced individual training, a year-long deployment to Afghanistan in 2011-12, mandatory weekend training drills held once every month, and mandatory two-week training programs held every summer. (Id. at 43-44, 69-70, 73-74). In all instances, Plaintiff provided AMC with the dates of his military obligations well in advance and AMC granted Plaintiff all the time off he requested in connection with his military service. (Id. at 77, 80-81, 354).

         In March 2008, a few months prior to leaving for basic training, Plaintiff applied for a promotion to an Hourly Manager position but was not selected. (Id. at 125-127). As noted above, AMC later promoted Plaintiff to Hourly Manager in 2009 after he returned from his initial military training. (Id. at 113). Plaintiff's promotion to Kitchen Manager in 2013 followed his return to AMC after his year-long deployment to Afghanistan. (Id. at 116-17, 148-49).

         While Plaintiff's performance evaluations (completed by AMC Easton General Manager Tim Kalman) were largely positive, several of his written reviews noted that he sometimes spoke to employees under his supervision in an unprofessional manner and he was encouraged to work on his communication skills. (Doc. 32-1, PAGEID #705, 707, 709, 712, 715). Multiple employees also filed complaints with AMC about the way Plaintiff treated them, complaining that Plaintiff was “being unfair and abusing his power, ” speaking to employees in a belittling and aggressive manner, and making an example of employees in a demeaning way while others were present. (Doc. 32-3, PAGEID #759-67).

         B. Remarks regarding Plaintiff's military obligations

         Although Plaintiff received all requested time off for his military obligations, on more than one occasion, AMC employees made negative comments regarding the amount of time off Plaintiff required. After Plaintiff was passed over for promotion in 2008 prior to leaving for basic training, the employee who was selected for the promotion allegedly stated to Plaintiff, “Thanks for joining the military. I just got promoted.” (Doc. 29-1, Hickle Dep. at 384).

         Plaintiff's immediate supervisor, Jacqueline Adler, also made a number of comments that Plaintiff interpreted as discriminatory on the basis of his military service. According to Plaintiff:

• Adler would often tell him that his requesting time off for his military service was frustrating to her. (Id. at 338).
• Adler once told Plaintiff that he should be moved from the kitchen to the front of house, because there were more managers available there and Plaintiff's military service would not cause such a scheduling headache for her. (Id. at 339).
• When Plaintiff informed Adler in June 2014 that he could not work the closing shift the night before his weekend military drills, Adler told him that he would have to find another job, because he no longer met the minimum qualifications for being an AMC employee. (Id. at 340).
• In February 2015, Adler stated in reference to Plaintiff requesting time off for military service in each of June, July, and August of that year, “So you're taking off the whole summer. We just need to get you replaced.” (Id. at 341).
• In early April 2015, Plaintiff reminded Adler that he would not be able to work the weekend of “The Avengers” movie release due to a mandatory military drill. Adler responded that Plaintiff would be terminated if he failed to report for work that weekend and that the reason for requesting the weekend off “doesn't matter.” Plaintiff then told Adler that it was unlawful for her to terminate his employment because of his military service, to which Adler responded, “Well, that's okay. We will find something else to terminate you on.” (Id. at 328).

         Adler denies making any of these statements.

         C. Plaintiff's April 17, 2015 altercations with kitchen employees

         On Friday, April 17, 2015, Plaintiff was managing the employees and operations at AMC's Easton Theater. (Doc. 33-3, April 17, 2015 Statement of Jared Hickle). Plaintiff found a to-go box in the kitchen microwave containing ten chicken tenders, and, after Plaintiff queried the room, kitchen employee Quinton Branham admitted that they belonged to him. (Id.). Because the to-go box contained ten chicken tenders, which exceeded the limit of five that employees were permitted to take home with them, Plaintiff was concerned that Branham had engaged in theft. (Id.). Plaintiff and Branham engaged in a heated back and forth involving profanity. (Doc. 29-1, Hickle Dep. at 235-236; Doc. 32-2, April 18, 2015 Statement of Quinton Branham, PAGEID #733-36). Additionally, according to Branham, Plaintiff made racially-charged references to Branham and drugs and possession being nine-tenths of the law. (Doc. 32-2, April 18, 2015 Branham Statement, PAGEID #733-34).

         Plaintiff then decided that none of the kitchen staff would be permitted to take food home with them that night, and he instructed all of the kitchen staff to take a break to eat any food they had been planning on taking home with them. (Doc. 33-3, April 17, 2015 Hickle Statement). Another kitchen employee, Dwight Williams, took issue with Plaintiff's decision, and Plaintiff and Williams also engaged in a heated discussion involving raised voices and profanity. (Id.; Doc. 32-2, April 20, 2015 Statement of Tim Kalman, PAGEID #740).

         AMC suspended Branham and Williams and ultimately terminated their employment for their part in the dispute. (Doc. 36, Dep. of Tim Kalman at 36.).

         D. Plaintiff's fear of a plot to have him fired

         On Sunday, April 19, 2015, two days after the altercations with Branham and Williams, Plaintiff texted Adler to seek her guidance regarding what he termed a “major issue.” (Doc. 33-8, April 19 2015 Text Messages). Plaintiff told Adler that he had learned that “several supervisors and managers are plotting against me” and that three different AMC employees had told him that “[y]ou [Adler] told them there wasn't much you could do because ‘I am Tim [Kalman]'s golden boy and have been there forever, but they could have a lot of statements written and it would go above Tim's head to home office.' (this part I don't believe).” (Id.)

         Adler responded, “Well first I know the first part isn't true I never said that to anyone. Second, I need more information. Who are the 3 people that told you this and when?” (Id.). She further stated, “Also Jared if they are telling the truth you need all of them to write statements tonight” and “We will look into this Monday. Can you get the statements tonight? Write yours as well about what you were told by who so that we have that as well and put in my top drawer in my desk.” (Id.).

         Plaintiff apparently obtained either oral or written statements from various AMC employees, although it is not clear from the record from which employees he collected statements or whether those statements are included in the record.

         E. AMC's investigations and Plaintiff's termination

         The week of April 20, 2015, AMC began investigating the April 17 altercations with Branham and Williams as well as Plaintiff's allegations of the plot to get him fired. The investigations were conducted by Mary Melton-Miller, a Compliance Manager in AMC's home office in Kansas. (Doc. 32-4, Melton-Miller Dep. at 13). Melton-Miller conducted her investigation primarily by reviewing statements by various AMC employees that were collected by Easton General Manager Tim Kalman and Easton Senior Manager Stephanie McClelland. (Doc. 36, Kalman Dep. at 59-62).[1] Ultimately, Melton-Miller recommended that AMC terminate Plaintiff's employment for both (1) unprofessional behavior and (2) impeding an investigation. (Doc. 32-4, May 5, 2015 Email from Melton-Miller, PAGEID #795). Melton-Miller forwarded her findings to Keana Bradley, AMC's Manager of Performance Management. (Id.). Bradley reviewed Melton-Miller's findings, reviewed Plaintiff's performance reviews, and conferred with Kalman and Director of Operations Ryan Guichet. (Doc. 32-3, Bradley Dep. at 24-31). Based on this review, Bradley ultimately decided to terminate Plaintiff's employment. (Id.)

         Plaintiff's termination was effective May 8, 2015. Plaintiff commenced this action on December 9, 2015, seeking compensatory damages, back pay, and front pay under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311, and Ohio's statute prohibiting employment discrimination on the basis of, inter alia, military service, R.C. ยง 4112.02. Plaintiff bases his claims under both statutes on ...

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