United States District Court, S.D. Ohio, Western Division
ENTRY AND ORDER GRANTING DEFENDANT=S MOTION FOR
SUMMARY JUDGMENT, ECF 19, AND TERMINATING CASE.
M. ROSE, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's Motion for Summary
Judgment. ECF 19. Plaintiff Ekbal Khan does not oppose the
request for complete dismissal by three of four Defendants:
Michael Kress, Chris Kenyon, and Jason Bobb. Further,
Plaintiff does not oppose the request for dismissal against
Defendant Canonical USA Inc., of Plaintiff's claims of
Hostile Work Environment under federal law, Retaliation under
federal law and Retaliation under Ohio law. The only claims
remaining in dispute are claims against Canonical for Race
Discrimination under state and federal law and National
Origin Discrimination under state and federal law. ECF 23
n.1. Because Plaintiff is neither able to come forward with
direct evidence of discrimination, nor able to create a prima
facie case of such, nor able to refute Defendant's stated
non-discriminatory reason for dismissing Plaintiff,
Defendant's motion will be granted.
Canonical USA Inc., recruited Plaintiff Ekbal Khan, a native
of India, from its competitor, Red Hat, hiring him on August
3, 2015. (Plaintiff Depo. at 16-17; 31). Prior to Plaintiff
joining them, Canonical did not receive any revenue in the
Americas in telecommunications sales from two of
Plaintiff's largest pre-existing clients - Verizon and
CenturyLink. (Kenyon Depo. at 27-28). Plaintiff also brought
other clients with him to Canonical, including AT&T,
Sprint, T-Mobile, TELUS Communications, Rogers
Communications, Comcast Cable, Level 3 Communications, and
Cincinnati Bell Technology Solutions. (Id. at
his hire at Canonical, Plaintiff was assigned a sales quota
of $2 million. (Plaintiff Depo. at 24; Deposition of Michael
Kress at 37). The job description for Plaintiff's
position called for a $1.5 million quota (Kenyon Depo. at 41
and Plaintiff's Depo. at Ex. C). No. one in sales at
Canonical ever had a higher starting sales quota than
Plaintiff. (Kress Depo. at 45). Plaintiff's quota
eventually rose to $4 million prior to his termination.
(Kenyon Depo. at 43).
Wolfrum assumed some of Plaintiff's job responsibilities
after Plaintiff was terminated. (Interrogatory Responses at
number 10 at 10). Wolfrum is Caucasian (Id. at
number 19, at 17). Wolfrum's sales quota for 2016-2017
was $500, 000 and for 2017-2018 was $950, 000 -less than
Plaintiff's $4 million quota for this period.
(Id. at number 18, at 16). Brian McDonald, who
assumed Plaintiff's other major client, never had a quota
above $2.7 million. (Plaintiff Depo. at 47-48; Interrogatory
Responses at supplement at 36; Deposition of Jason Bobb at
35). He is also Caucasian. (Interrogatory Responses at number
10, at 10). No. one was hired to replace Plaintiff, however.
argues that Plaintiff's high quota resulted from his high
salary and high bonus potential. (MSJ at 6 n.6)).
Plaintiff's ending salary was $163, 200 with a bonus
potential of up to $142, 800. (Interrogatory Responses at
number 9 at 9). Wolfrum, whose quota was only 1/4th of
Plaintiff's, had a salary of $140, 000 with a bonus
potential of $140, 000. (Id. at number 10, at 10).
McDonald's salary was roughly the same as Woflrum's.
(Plaintiff Dec. at ¶6). He had a bonus potential of
$140, 000. (Bobb Depo. at Ex. 9). Plaintiff asserts that his
quota caused him to be far more aggressive with customers in
an attempt to meet the quota, as he had to close deals
quickly and then move on. (Plaintiff Dec. at ¶7).
Plaintiff was recruited, Canonical's Christopher Kenyon
told Plaintiff that he would be the head of the sales team
for telecommunications in North America. (Plaintiff Depo. at
33). However, upon hire, Plaintiff was placed under Mike
Kress. (Id. at 33-34). Plaintiff reported to three
different supervisors during his tenure at Canonical: he
reported to Mike Kress from August 3, 2015 to September 30,
2015; Chris Kenyon from October 1, 2015 to August 31, 2016;
and Jason Bobb from September 1, 2016 to April 11, 2017.
(Khan Depo. 26-27). Plaintiff worked out of his home, as did
the majority of Canonical's employees. (Khan Depo. 19;
Bobb Depo. 150). Kress was Vice President of Sales (Kress
Depo. 15-16); Bobb was head of Sales in Americas (Bobb Depo.
20); and Kenyon was Vice President of Cloud Sales. (Kenyon
Decl. ¶2). Both Kress and Bobb reported to Kenyon. (Khan
Depo. 241). Kenyon reported to Anand Krishnan (a
“senior leader” who was the head of sales at
Canonical), who in turn reported to CEO, Jane Silber.
(Id. at 29-31). Krishnan is also Indian. (Kenyon
often verbally pointed out to Plaintiff that he was from
India, and as a result, he was different from most at
Canonical and may not fit-in. (Id. at 41-46). Kress
criticized almost every aspect of Plaintiff's job
performance. Kress had issues with Plaintiff's planning a
trip to California to meet with business contacts at Verizon.
(Id. at 97). Kress criticized not only that
Plaintiff arranged for the trip within a week of its
occurrence, but also that Plaintiff arranged to fly from Ohio
to California the day before the meeting to adjust and
prepare for it. (Kenyon Depo. at Ex. 38). Moreover, Plaintiff
travelled to California for three days for one customer
meeting. (Kress Depo. 39, 55; Ex. 38; Kenyon Depo. 110-12).
short notice California trip violated Canonical's travel
policy, which mandates at least seven days' notice.
(Kress Depo. 40). This is for two basic reasons: 1) booking
travel in advance saves money, and 2) objectives of the trip
could be discussed to ensure resources were used properly.
(Kress Depo. 41). Kress found: Plaintiff “abuse[d] the
travel expense and time policy.” (Ex. H, p. 2;
Id.). Plaintiff admits he should have told Kress
about the trip before he went. (Khan Depo. 95-96).
Friday, September 18, 2015, during the California trip,
Plaintiff had a deadline to submit a major client proposal
for a company named Level 3. Plaintiff
“disappeared” on the day of the proposal
submission. (Kress Depo. 43, 46-48). Plaintiff was not online
and not otherwise available that day. (Khan Depo. 102). Kress
called, texted and emailed Plaintiff, but he never responded.
(Kress Depo. 47-48). Plaintiff claims that he submitted the
proposal on Friday, and then took the rest of the day off.
(Khan Depo. 97-98). Plaintiff failed to provide an
explanation. (Kenyon Depo. 70-71).
and Kenyon cancelled their plans for the day to address the
submission. (Kress Depo. 62; Kenyon Depo. 118). Several
employees had to work through the night to assist.
(Id. at 111). Plaintiff admits that the customer was
not happy with the proposal. (Khan Depo. 100). While
ultimately, Canonical was awarded the contract with Level 3,
Kenyon believed that there was a “lack of
honesty” that was a “very significant warning
sign to us about him.” (Kenyon Depo. 71, 111).
October 26, 2015, Kress drafted a Performance Improvement
Plan in conjunction with HR. (Kress Depo. 67-68; Ex. G). The
Performance Improvement Plan ranked Plaintiff below average
in most categories and extended Plaintiff's probationary
period. (Ex. G). Kress “didn't necessarily see a
lot of redeeming qualities that was going to help us with
Plaintiff long-term, even from that early stage.”
(Kress Depo. 71). He sized up Plaintiff's overall
attitude: “I don't really care what you think
… I'm going to just kind of do whatever I
want.” (Id. at 50). Kenyon did not disagree
with Kress' rankings. (Kenyon Depo. 93). But the
Performance Improvement Plan was never given to Plaintiff;
instead, Kenyon decided to transfer Plaintiff's
supervision from Kress to himself. (Id. at 92-94,
117). Plaintiff was pleased with the change because he did
not want to work for Kress. (Khan Depo. 78, 81).
became Plaintiff's direct supervisor in October of 2015
and remained in that position until May of 2016. (Kenyon
Depo. at 92, 95). During this time, Plaintiff had personality
conflicts with co-workers James Troup, Dan Poler, and Jason
Tally. Troup “cussed out” Plaintiff on a phone
call, and Plaintiff took exception to it. (Plaintiff Depo. at
143). Kenyon admitted that he did not ascribe blame to
Plaintiff (or anyone else) regarding the Troup incident.
(Kenyon Depo. at 69). While Plaintiff was not formally
disciplined for the situation involving Poler, Poler
criticized Plaintiff for not using his assigned solution
architect, “the result being the cycle of poorly
structured and unsupportable deals will continue.” (Ex.
R). (Kenyon Depo. at 68).
Talley, a solutions architect manager, criticized Plaintiff
for not having extra personnel on a call with a client (who
would have technical knowledge about Canonical's
products). (Kenyon Depo. at Ex. 48). On March 28, 2016,
Talley, a solutions architect manager, sent an email to
Kenyon and Poler flagging that Plaintiff was on a customer
call with Verizon (a major customer), “and he is quite
frankly embarrassing […] he doesn't know our
products.” (Khan Depo. 172-73; Ex. Q). Talley expressed
frustration that Plaintiff was unhappy ...