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Khan v. Canonical USA, Inc.

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

November 20, 2019

Ekbal Khan, Plaintiff,
Canonical USA, Inc., et al., Defendants.



         Pending 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.

         I. Background

         Defendant 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 ¶5).

         Upon 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).

         Ryan 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.

         Canonical 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).

         When 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 Depo. 65).

         Kress 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).

         The 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).

         On 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).

         Kress 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).

         By 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).

         Kenyon 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).

         Jason 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 ...

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