United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
C. SMITH, JUDGE.
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.
Plaintiff's employment with AMC
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).
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,
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).
Remarks regarding Plaintiff's military obligations
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).
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
• 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).
denies making any of these statements.
Plaintiff's April 17, 2015 altercations with kitchen
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).
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).
suspended Branham and Williams and ultimately terminated
their employment for their part in the dispute. (Doc. 36,
Dep. of Tim Kalman at 36.).
Plaintiff's fear of a plot to have him fired
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).”
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.”
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.
AMC's investigations and Plaintiff's termination
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). 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.)
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. §
4112.02. Plaintiff bases his claims under both statutes on