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Melin v. Verizon Business, Inc.

United States District Court, D. Kansas

March 12, 2014

CURT C. MELIN, Plaintiff,


ERIC F. MELGREN, District Judge.

Plaintiff Curt C. Melin ("Plaintiff") seeks monetary damages, including attorney's fees, and injunctive relief from his employer, Defendant Verizon Business, Inc. ("Defendant") for alleged disability discrimination, harassment, and retaliation in violation of the Americans with Disabilities Act of 1990 ("ADA")[1] and Title VII of the Civil Rights Act of 1974 ("Title VII").[2] This matter is set for trial on April 22, 2014. Defendant now moves for summary judgment on each of Plaintiff's claims. For the reasons stated below, Defendant's motion is granted in its entirety.

I. Factual and Procedural Background[3]

Plaintiff has been employed by Defendant and/or its predecessors since 1992, most recently as a Senior Accounts Representative (or "Account Manager 3"). In this capacity, Plaintiff is responsible for selling Defendant's services and products to certain assigned clientele, for which Plaintiff is compensated by both a base salary and commission earnings. For the years in question, 2009 and 2010, and consistent with Plaintiff's status as an Account Manager 3, Plaintiff had the potential to earn up to $60, 000 per year in commissions. To do so, Plaintiff was required to meet a $5 million revenue quota on his assigned accounts.

Beginning sometime in 2007, Plaintiff was assigned to work under Senior Sales Manager and supervisor Roger Peterson ("Peterson"). Peterson remained Plaintiff's supervisor through the end of 2009. In his pleadings, Plaintiff portrays Peterson as somewhat of the office bully, claiming that Peterson routinely engaged in rude and inappropriate behavior with regard to his fellow employees, often making off-color jokes about race, ethnicity, or sexual orientation. As for Plaintiff, he claims that he was the target of Peterson's behavior because of his medically diagnosed ulcerative colitis. Plaintiff claims that Peterson verbally harassed and abused him both directly, in the form of in-person comments and email and chat messages, and indirectly to his coworkers.

In late 2008, as Defendant was planning its accounts and revenue quotas for 2009, Peterson went to Plaintiff with concerns about Plaintiff's 2008 client revenue growth. Based on Plaintiff's declining numbers, Peterson informed Plaintiff that he faced a demotion to Account Manager 2, thereby reducing his potential commission earnings.[4] In an effort to prevent this, Peterson and Plaintiff agreed that Plaintiff would assume additional client accounts in 2009. Plaintiff now alleges that these additional accounts were worthless, wrought with problems that prevented him from earning his full $60, 000 in commissions.

On November 24, 2009, Plaintiff filed a complaint via email with Executive Vice President of Human Resources Marc Reed ("Reed") about Peterson's conduct. In that email, Plaintiff alleged that Peterson created a hostile working environment and set disproportionately high sales goals for Plaintiff. The complaint did not make mention of Plaintiff's medical condition or any discrimination or harassment based on that medical condition.

In December 2009, Defendant conducted an investigation of Peterson's conduct. Human resource representatives Susan Penick Graham ("Graham") and Aileen Thompson ("Thompson") interviewed eleven individuals, including Plaintiff, Peterson, and Peterson's supervisor, Area Vice President Doug King ("King"). They also requested review of Plaintiff's 2009 account plan by Regional Vice President Jared Kearney ("Kearney").

Although Kearney concluded that Plaintiff's 2009 revenue plan was fair, Defendant determined that Peterson had indeed violated Defendant's Code of Conduct. On January 15, 2010, Defendant issued Peterson a notice of corrective action containing the following findings: (1) Peterson engaged in unprofessional conduct and sent communications that were inappropriate for a member of management and counterproductive to Defendant's corporate environment; (2) Peterson sent Plaintiff rude and inappropriate emails over a span of several years, using his corporate email account; and (3) Peterson made unprofessional and crude comments in front of [his direct] reports and peers and discussed Plaintiff's physical ailments with others. Peterson was therefore required to take courses on Defendant's corporate code of conduct and civil training. Plaintiff admits that after Peterson received this notice, he never again made any offensive comments to Plaintiff.

On December 21, 2009, Thompson sent Plaintiff an email offering to discuss Plaintiff's options for accommodation under Defendant's Family Medical Leave Act ("FMLA") policy. On December 29, 2009, Thompson sent Plaintiff a second letter reminding him of these options. Plaintiff admits that he never followed up with human resources, and has not needed any accommodation for his ulcerative colitis since then.

Upon filing his internal complaint, Plaintiff claims he knew immediately that people were treating him differently. Peterson was "less engaging, more withdrawn, less conversation, no eye contact, very stern...." and warned Plaintiff to expect retaliation from other employees.[5] Plaintiff alleges that his coworkers, namely Sales Engineers ("SEs") Gabriella Godoy ("Godoy"), Joe Sarkis ("Sarkis") and SE supervisor Brenda Kubicki ("Kubicki") attempted to destroy Plaintiff's credibility and stopped providing Plaintiff with account support. In addition to these direct attacks, Plaintiff alleges that, on three separate occasions, Godoy, Sarkis, and SE Kim Hein ("Hein") instructed SE Allan Nordike ("Nordike") to stop providing assistance to Plaintiff. Plaintiff also alleges interference with his accounts, removal from one of his largest accounts, and accounting errors that cost him $80, 000 in commission compensation. In August 2010, Plaintiff filed a second internal complaint with Defendant's human resources department alleging acts of retaliation. Defendant conducted a second investigation.

In addition to these internal complaints, Plaintiff also filed two charges with the Equal Employment Opportunity Commission ("EEOC"), initially on March 1, 2010, alleging discrimination based on race, disability, and retaliation, and an amendment on Novemeber 1, 2010, alleging discrimination and retaliation. Following an investigation, the EEOC determined that Peterson violated the ADA by disclosing Plaintiff's confidential medical information to other employees. The EEOC declined, however, to find that: (1) Plaintiff was harassed and denied a reasonable accommodation; (2) that his compensation/commission structure was unfairly created or applied; or (3) he was undermined and not provided support by management. The EEOC issued Plaintiff a Right to Sue letter on May 24, 2012.

Plaintiff filed this suit on July 6, 2012, alleging the following: (1) discrimination, harassment, and retaliation under the ADA; and (2) retaliation under Title VII. Defendant now seeks summary judgment on all of Plaintiff's claims.

II. Legal Standard

Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[6] A fact is "material" when it is essential to the claim, and the issues of fact are "genuine" if the proffered evidence permits a reasonable jury to decide the issue in either party's favor.[7] The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim.[8] The nonmovant must then bring forth specific facts showing a genuine issue for trial.[9] These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits - conclusory allegations alone cannot survive a motion for summary judgment.[10] The court views all evidence and reasonable inferences in the light most favorable to the non-moving party.[11]

III. Analysis

ADA Claims

The ADA prohibits "discriminat[ion] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."[12] Plaintiff identifies three ADA-based theories: (1) hostile working environment/harassment; (2) discrimination; and (3) retaliation.

A. Hostile Work Environment/Harassment

To succeed on a hostile work environment claim at the summary judgment stage, "a plaintiff must show that a rational jury could find that the workplace [was] permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."[13] To determine whether a working environment is sufficiently hostile or abusive, a court must examine all the circumstances, including: "(1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's work performance."[14] The working environment "must be both subjectively and objectively hostile or abusive."[15]

As proof of an allegedly actionable hostile working environment, Plaintiff cites only Defendant's internal investigation and reprimand of Peterson's behavior. This internal decision alone is not enough to automatically warrant this Court's finding of a hostile working environment under the ADA. Otherwise, as Defendant suggests, an employer would have no incentive to abide by its own policies since doing so would then open the employer up for liability under the ADA. Furthermore, Plaintiff offers no evidence that Defendant's internal standards for a reprimand are identical to those required to find an actionable hostile working environment under the ADA.

While it is clear that Peterson was unprofessional in his behavior, Plaintiff must remember that his claim for a hostile working environment must ultimately relate back to his alleged disability. Plaintiff fails to make this connection. As evidence of direct "intimidation, ridicule, and insult, " Plaintiff presents the following emails and instant messages from Peterson:

1. September 12, 2005: "You must have done a BJ also"[16]
2. December 1, 2005: "right. Go get it bitch"[17]
3. October 4, 2007: "Well, I think Pat is saying this is a completely f-ked up customer and ...

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