Case: 1:11-cv-02674-JG Doc #: 1 Filed: 12/09/11 1 of 7. PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JASON W. KOREN 77-159 Queen Kalama Ave Kailua Kona, HI 96740
Plaintiff,
v.
THE OHIO BELL TELEPHONE COMPANY d/b/a AT & T, INC. C/O CT Corporation 1300 East Ninth Street Cleveland, OH 44114
Defendant.

:

:

:

:

Case No.

: :

Judge

: :

COMPLAINT

: :

(Jury Demand Endorsed Hereon)

:

:

:

:

:

Now comes Plaintiff Jason W. Koren (hereinafter “Plaintiff”), by and through his undersigned counsel, Dworken & Bernstein Co., LPA, and for his Complaint against The Ohio Bell T elephone Company d/b/a AT & T, In c. (hereinafter “Def endant”), states as follows:
PARTIES 1. Plaintiff is a resident of Kailua Kona, Hawaii. 2. Plaintiff was an employee of Defendant as that term is defined in the Ohio Civil Rights Act, Ohio Revised Code Chapter 4112 (hereinafter “OCRA”) , the Americans With Disabilities Act, 42 U.S.C. Section 12001, et. seq. (hereinafter “A DA”) and Title VII of the Civil Rights Act (hereinafter “Title VII”). 3. Defendant is a corporation duly licens es to do business in the State o f Ohio.

Case: 1:11-cv-02674-JG Doc #: 1 Filed: 12/09/11 2 of 7. PageID #: 2
4. Defendant was Plaintiff’s employer as that term is defined in the OCRA, the ADA and Title VII.
JURISDICTION AND VENUE 5. Plaintiff realleges and reavers each and every allegation contained in Paragraphs One (1) through Four (4) as if fully rewritten herein. 6. Plaintiff filed a charge of discri mination with the Equal Em ployment Opportunity Commission (hereinafter “EEOC”). 7. The EEOC issued a Notice of Right to Sue Letter to P laintiff on or about September 12, 2011, a c opy of which is attached hereto as Exhibit “A” and m ade a part hereof. 8. This Court has subje ct matter jurisdiction over Plaintiff’s federal claims pursuant to 28 U.S.C. Section 1331 because th e dispute involves interpretation of federal laws. 9. This Court has supplem ental jurisdiction over Plaintiff’s state law claim s pursuant to 28 U.S.C. Section 1367 because they are so related to the federal claims that they form part of the same case or controversy. 10. This Court has personal jurisdiction over Defendant. 11. This matter is properly venued in this Court pursuant to 28 U.S.C. Section 1391 because the subject matter of the claims occurred in Cleveland, Ohio.
2

Case: 1:11-cv-02674-JG Doc #: 1 Filed: 12/09/11 3 of 7. PageID #: 3
STATEMENT OF FACTS 12. Plaintiff realleges and reavers each and every allegation contained in Paragraphs One (1) through Eleven (11) of this Complaint as if fully rewritten herein. 13. Plaintiff was a regu lar limited term employee in the position of Service Representative at Defendant’s facili ty located at 45 E rieview Plaza, 10th Floor, Cleveland, Ohio 44114. 14. This was Plaintiff’s second term of employment with Defendant. 15. Plaintiff’s employment was gover ned by a Collective Bargaining Agreement between Defendant and the Communication Workers of America, District 4. 16. Plaintiff’s position involved customer service and sales. 17. During Plaintiff’s initial term of employment with Defendant, he had been known as Jason Cabot. 18. Plaintiff and his same sex partner had been married in another state which recognized same sex marriages. 19. Upon returning to Ohio, Plaintiff legally changed his name from Jason Cabot to Jason Koren to take on his partner’s last name. 20. Plaintiff was HIV positive during th e course of his em ployment with Defendant and has been diagnosed with AIDS. 21. Plaintiff had advised h is co-workers of his sta tus as be ing HIV positiv e and being diagnosed with AIDS in 2006 during his first stint with Defendant. 22. Defendant is a qualified i ndividual with a disabili ty for purposes of the OCRA and the ADA.
3

Case: 1:11-cv-02674-JG Doc #: 1 Filed: 12/09/11 4 of 7. PageID #: 4
23. During the course of his em ployment, Plaintiff was subjected to harassment and degrading behavior because of his disability and/or his failure to conform to gender stereotypes by entering into a same sex marriage.
24. During his employment, a manager in his department repeatedly referred to Plaintiff as Jason Cabot rather than Jason Koren.
25. This employee specifically stated that she would never recognize Plaintiff’s marriage or refer to him by his legally changed name.
26. In the Fall of 2009, Plaintiff m issed work to travel out of state to visit his father on his death bed and attend his funeral.
27. Pursuant to the Collective Bargain ing Agreement, Plaintiff was entitled to funeral leave for at least a part of these absences.
28. The same HR e mployee who refused to recognize Plaintiff’s sam e sex marriage, refused to credit him with funeral time.
29. Defendant eventually terminated Plaintiff’s employment because of absenteeism for absences that should have been excused leave unde r the Funeral L eave Policy.
30. Plaintiff believes th at the cited atte ndance problems were a pretex t for discriminatory animus against him because of his disability and his failure to conform to general stereotypes relating to his same sex marriage.
31. As a direct and proxim ate result of Plaintiff’s termination, he has suffered lost wages, lost benefits, emotional distress and other damages in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00).
4

Case: 1:11-cv-02674-JG Doc #: 1 Filed: 12/09/11 5 of 7. PageID #: 5
COUNT ONE AMERICANS WITH DISABILITIES ACT 32. Plaintiff realleges and reavers each and every allegation contained in Paragraphs One (1) through Thirty-One (31) of this Complaint as if fully rewritten herein. 33. Plaintiff has a disability, is perceived as having a disabi lity and/or has a record of having a disability as those terms are defined in the ADA. 34. Defendant terminated and/or refused to em ploy Plaintiff because of Plaintiff’s disability. 35. The foregoing conduct violates the provisions of the ADA. 36. As a direct and proxim ate result of Plaintiff’s termination, he has suffered lost wages, lost benefits, emotional distress and other damages in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00).
COUNT TWO THE OHIO CIVIL RIGHTS ACT-DISABILITY DISCRIMINATION 37. Plaintiff realleges and reavers each and every allegation contained in Paragraphs One (1) through Thirty Six (36) of this Complaint as if fully rewritten herein. 38. Plaintiff has a disability, is perceived as having a disabi lity and/or has a record of having a disability as those terms are defined in the OCRA. 39. Defendant terminated and/or refused to em ploy Plaintiff because of Plaintiff’s disability. 40. The foregoing conduct violates the provisions of the OCRA.
5

Case: 1:11-cv-02674-JG Doc #: 1 Filed: 12/09/11 6 of 7. PageID #: 6
41. As a direct and proxim ate result of Plaintiff’s termination, he has suffered lost wages, lost benefits, emotional distress and other damages in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00).
COUNT THREE TITLE VII
42. Plaintiff realleges and reavers each and every allegation contained in Paragraphs One (1) through Forty One (41) of this Complaint as if fully rewritten herein.
43. Defendant has discrim inated against Plaintiff because Plain tiff has failed to conform to gender stereotypes as a result of having entered into a same sex marriage.
44. Said discriminatory conduct violates Title VII. 45. As a direct and proxim ate result of Plaintiff’s termination, he has suffered lost wages, lost benefits, emotional distress and other damages in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00).
COUNT FOUR OHIO CIVIL RIGHTS ACT – GENDER DISCRIMINATION 46. Plaintiff realleges and reavers each and every allegation contained in Paragraphs One (1) through Forty Five (45) of this Complaint as if fully rewritten herein. 47. Defendant has discrim inated against Plaintiff because Plain tiff has failed to conform to general stereotypes as a result of having entered into a same sex marriage. 48. Said discriminatory conduct violates the OCRA. 49. As a direct and proxim ate result of Plaintiff’s termination, he has suffered lost wages, lost benefits, emotional distress and other damages in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00).
6

Case: 1:11-cv-02674-JG Doc #: 1 Filed: 12/09/11 7 of 7. PageID #: 7

WHEREFORE, for the foregoing reasons, Plaintiff requests the following relief:
A. Compensatory damages in an am ount in excess of Twenty-Five Thousand Dollars ($25,000.00);
B. Punitive damages in an am ount in excess of Twenty-Five Thousand Dollars ($25,000.00);
C. Attorneys’ fees and costs as provided for under the law;
D. Pre- and post-judgment interest; and
E. Such other and further relief as this Honorable Court may deem Plaintiff to be entitled.

Respectf

ully submitted,
/s/Richard Selby_________________ Richard N. Selby, II, Esq. (#0059996) rselby@dworkenlaw.com DWORKEN & BERNSTEIN CO., L.P.A. 60 South Park Place Painesville, Ohio 44077 (440) 352-3391
Attorney for Plaintiff Jason Koren

JURY DEMAND
Now comes Plaintiff, by and through his c ounsel, and demands that this case be tried before a jury of the maximum number allowed by law.

/s/Richard Selby_________________ Richard N. Selby, II, Esq. (#0059996)

7

 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

-------------------------------------------------------

:

JASON W. KOREN,

:

:

Plaintiff,

:

:

v.

:

:

THE OHIO BELL TELEPHONE

:

COMPANY,

:

:

Defendant.

:

:

-------------------------------------------------------

CASE NO. 1:11-CV-2674
OPINION & ORDER [Resolving Doc. No. 25]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

In this case, Defendant The Ohio Bell Telephone Company fired Plaintiff Jason W. Koren

after Koren missed work for his father’s funeral. Koren (who suspects Ohio Bell really fired him

because he’s homosexual and took his husband’s last name) now brings gender-discrimination and

disability-discrimination claims against Ohio Bell. Ohio Bell has moved for summary judgment,

[Doc. 25], and Koren has filed an opposition to that motion, [Doc. 27]. For the following reasons,

the Court DENIES Ohio Bell’s motion for summary judgment.

I.

A. 2000-2006: Koren’s First Employment with Ohio Bell Jason Koren was first employed at Ohio Bell1/ from 2000 to 2006, and had climbed the

1/
Some documents indicate that Koren was employed by AT&T, an affiliate of Ohio Bell. The correct defendant in this case is Ohio Bell, not AT&T. See [Doc. 12 (Order granting stipulated motion to correct the Defendant’s name to Ohio Bell)]. Accordingly, the Court shall refer to the Defendant only as Ohio Bell.
-1-

Case No. 1:11-CV-2674 Gwin, J. employment ranks to a manager position. During these years of employment, Koren’s legal name (and the name he went by) was Jason Cabot. Koren’s co-workers all knew that he was homosexual, including fellow manager Kim Miceli—she and Koren had “a good working relationship.” [Docs. 25-3 at 1; 24-1 at 12; 27-2 at 24].
Koren claims that prior to ending his first employment with Ohio Bell, he had made it known to his co-workers that he had been suffering from AIDS. (Some of Koren’s co-workers deny that they had knowledge of Koren’s condition in 2006.2/) Koren left Ohio Bell in 2006; he believed that he left on “good terms.” [Doc. 24-1 at 5].
B. 2009: Koren’s Second Employment with Ohio Bell On December 31, 2008, Koren got married in Massachusetts and took the name of his husband. Ohio Bell rehired Koren on June 8, 2009, as a sales consultant (a “Limited Term” employee position), and after he was rehired Jason Cabot legally changed his name to Jason Koren. [Id. at 3-5]. Prior to being assigned to a sales floor, Koren completed three months of company training. Although the first few days proceeded without incident, Koren says that things changed after the trainer learned about his background—and his sexual orientation. [Id. at 6]. Koren says that he was stereotyped and that attention was brought to the fact that he had changed his name by awarding him two training completion certificates: one as Jason Koren and then, immediately afterwards, one as Jason Cabot. [Id. at 6-7]. After training, Koren was assigned to a sales floor. Koren says that he was immediately treated unfairly by being initially denied a Sales Coach. [Id. at 8-9]. However, after “[r]oughly three
2/
See [Docs. 25-3 at 4; 25-2 at 3; 24-2 at 4].
-2-

Case No. 1:11-CV-2674 Gwin, J. or four weeks,” Koren was assigned to Sales Coach Anitra Bailey. [Id. at 9]. Bailey reported to the Call Center Sales Manager, James Tench, who was a co-worker of Koren’s during the 2000-2006 employment stint. Miceli, as the Call Center Attendance Manager, was also Koren’s superior. Both Miceli and Tench reported to the General Manager, Scott Willis, who had never met Koren.
Koren has other complaints about the way that he was treated during his second employment at Ohio Bell: (1) not being allowed to lead team meetings; (2) having a customer’s positive recommendation posted on the bathroom urinal wall rather than in the hallway with other recommendations; and (3) being denied access to an intranet pin that would allow him to view Ohio Bell job postings for managerial positions.
Koren also says that his relationship with Miceli took a turn for the worse once he was assigned to a sales floor. Koren says that Miceli began calling him Cabot, and he told her that was no longer his name and he preferred Jason or Mr. Koren. Then, according to Koren, Miceli told him that she would continue to call him Cabot because she refused to recognize his marriage or his name change. After that, Miceli would go out of her way to refer to him as Cabot. Although Miceli claims that she does not recall a conversation in which Koren informed her that he would like to be called Cabot, she admits that it may have occurred. Regarding same sex marriages, Miceli says that she “would never say that [she] would not recognize anything like that.” [Doc. 27-2 at 22].
Koren filed a union grievance against Miceli because she called him Cabot. Miceli claims that she settled the grievance by agreeing to call him Mr. Koren, but Koren says that Miceli called him Cabot “up until the day [he] left.” [Doc. 24-1 at 14].
When he worked for Ohio Bell the second time, Koren says that he needed no additional accommodations relating to the fact that he had AIDS. Koren did, however, take medicine that could
-3-

Case No. 1:11-CV-2674 Gwin, J. require more frequent bathroom breaks. Pursuant to Miceli’s instructions and Ohio Bell’s company policies, Koren produced a medical note to cover these frequent bathroom breaks in case they were to occur at work.
C. Koren’s Absences In September 2009, Koren’s father passed away; as a result, Koren missed nine days of work. Pursuant to Miceli’s instructions, Koren called off work each of the nine days he was absent. During the time he was away from work, Koren also kept in contact with his union benefit representative, Colleen Moughan. Koren claims that Moughan informed him that he would get excused time off for the funeral. [Id. at 20]. Ohio Bell’s Collective Bargaining Agreement indicated which employees were entitled to excused bereavement time off. See [Doc.25-6]. Miceli reviewed the Collective Bargaining Agreement and determined that Koren had not been with Ohio Bell long enough to be entitled to any excused bereavement days. But after consulting with Tench and the legal department, Miceli decided Koren was entitled to two excused, unpaid bereavement days. [Doc. 25-3 at 2]. In the end, Ohio Bell assessed Koren with seven unexcused absences. On October 5, 2009, Koren’s Sales Coach, Anitra Bailey, signed the document placing Koren on Final Written Warning, in accordance with Ohio Bell’s attendance policy. [Doc. 25-8 at 1]. This warning carried no further discipline, and “Koren was eligible to be removed from Final Written Warning on March 30, 2010 if he complied with the [Attendance] Policy.” [Doc. 25-2 at 2-3].
D. Koren’s Termination On October 23, 2009, Ohio Bell sent a letter to the employee’s union confirming an agreement to “convert” certain employees who had a “satisfactory rating in performance and
-4-

Case No. 1:11-CV-2674 Gwin, J. attendance” to “Regular Full Time Sales Consultants.” See [Doc. 25-10]. The conversion applied to employees in Limited Term positions who had been hired in 2009, including Koren. However, Ohio Bell would terminate limited Term employees with “an unsatisfactory rating in performance and/or attendance.” [Id.]. Scott Willis, after conferring with Ohio Bell’s Labor and Human Resources Departments, determined that the cut-off for satisfactory attendance rating would be four unexcused absences. [Doc. 25-5 at 2]. Neither Tench, Miceli, nor any other managers from Koren’s call center were involved in the decision to terminate Limited Term employees with four or more absences. [Docs. 25-5 at 2; 25-3 at 4; 25-2 at 3]. Because of his seven unexcused absences, Koren was not converted to a regular sales consultant; Ohio Bell terminated him on October 30, 2009. [Doc. 25-5 at 3].
E. Procedural History Koren brought this case against Ohio Bell, asserting four causes of action: (1) discrimination in violation of the Americans with Disabilities Act; (2) disability discrimination in violation of the Ohio Civil Rights Act (OCRA); (3) gender discrimination in violation of Title VII of the Civil Rights Act of 1964; and (4) gender discrimination in violation of the OCRA. Ohio Bell has moved for summary judgment on all of Koren’s claims and argues that Koren’s termination was unrelated to his disability, that there is no evidence that Koren’s termination was based on his gender, and that Koren’s termination was based on legitimate, nondiscriminatory reasons. See [Doc. 25].
II. Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 56(a). The moving party bears the initial burden to show the absence
-5-

Case No. 1:11-CV-2674 Gwin, J. of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden is met by showing the court that there is an absence of evidence on a material fact on which the nonmoving party has the ultimate burden of proof at trial. Id. at 325. The burden then shifts to the nonmoving party to “come forward with some probative evidence to support its claim.” Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). It is not sufficient for the nonmoving party merely to show that there is some existence of doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In deciding a motion for summary judgment, the Court “considers the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmoving party.” Lenscrafters, Inc. v. Robinson, 403 F.3d 798, 802 (6th Cir. 2005) (citations omitted).
III. A. Disability Discrimination Ohio Bell first argues that it is entitled to summary judgment on Koren’s federal and statelaw disability-discrimination claims because Koren cannot establish that Ohio Bell had knowledge of Koren’s disability.3/ For Koren to establish his prima facie Americans with Disabilities Act discrimination claim through indirect evidence, he must establish that, among other things, “the employer knew or had reason to know of the [his] disability . . . .”4/ Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir.
3/
“[R]egulations and cases interpreting the [Americans with Disabilities Act provide] guidance in [interpreting] Ohio law,” City of Columbus Civil Serv. Comm’n v. McGlone, 697 N.E.2d 204, 207 (Ohio 1998), and disposition of Ohio Bell’s motion for summary judgment on Koren’s federal disability discrimination claim will also settle the motion on Koren’s state disability claim.
4/Koren does not allege that he has direct evidence of either disability or gender discrimination. See Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998) (Direct “evidence would take the form, for example, of an employer telling an employee, ‘I fired you because you are disabled.’”)
-6-

Case No. 1:11-CV-2674 Gwin, J. 2011) (internal quotation marks omitted). Ohio Bell argues that Koren cannot satisfy this element
“because no decision maker with respect to the decision to end his employment knew that he had
AIDS.” [Doc. 25 at 10].
Koren does not argue that Scott Willis had knowledge of his condition; rather, he argues that
Willis terminated him in reliance on information coming from Tench and Miceli, who were aware of his condition.5/ [Doc. 27 at 7]. Recall, it was Miceli’s decision to assess Koren with seven
absences: Koren suggests that Miceli did not fairly evaluate his situation and points out that
Moughan, the union representative, often had to appeal to Miceli’s supervisors to intervene because
Miceli treated employees differently based upon her personal feelings about them. [Doc. 27-4 at 9].
Miceli and Tench dispute that fact and maintain that they were unaware of Koren’s AIDS
diagnosis. But what is undisputed is that Miceli and Tench worked with Koren during his first
employment period with Ohio Bell, and Koren testified that he “had advised his coworkers of his
status as . . . being diagnosed with AIDS in 2006.” [Doc. 24-1 at 4]. Furthermore, the reasonable
inference from the fact that Miceli required Koren to produce a medical note regarding his extra
bathroom breaks, [Id. at 14], supports Koren’s claim that Miceli knew he had AIDS.
In the end, this is a question of credibility—it’s Koren’s word versus Tench’s and Miceli’s.
And because “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions,” V & M Star Steel v. Centimark Corp.,
5/Koren relies upon a “cat’s paw” theory in which “the ultimate decisionmaker’s exercise of judgment [does not] automatically render the link to the supervisor’s bias remote or purely contingent.” Staub v. Proctor Hosp., 131 S. Ct. 1186, 1192 (2011). In Staub, the Supreme Court noted that multiple supervisors are often the proximate cause of “the ultimate decision” to “reward, punish, or dismiss” an employee. Id. Miceli and Tench were supervisors who completed “performance assessments” and made attendance decisions upon which “the ultimate decision” to terminate Koren was based. Id. at 1192-93. Accordingly Koren can support the fourth element if Miceli or Tench has knowledge of his disability. See Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 836 (6th Cir. 2012) (applying Staub to a Title VII claim).
-7-

Case No. 1:11-CV-2674 Gwin, J. 678 F.3d 459, 470 (6th Cir. 2012) (citation and internal quotation marks omitted), Ohio Bell has not “show[n] that there is no genuine dispute as to any material fact,” and is not “entitled to judgment as a matter of law” on Koren’s disability-discrimination claims. Fed. R. Civ. P. 56(a).
B. Gender Discrimination Ohio Bell also argues that it is entitled to summary judgment on Koren’s federal and statelaw gender-discrimination claims. According to Ohio Bell: (1) Koren has no evidence that he was terminated because of his sex; and (2) it fired Koren fired for a legitimate, nondiscriminatory reason, without evidence of pretext.6/ 1. Termination Because of Sex Title VII of the Civil Rights Act of 1964 provides that “[i]t shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of . . . [his] sex . . . .” 42 U.S.C. § 2000e-2(a). Koren’s theory is that “[Ohio Bell] has discriminated against [Koren] because [Koren] failed to conform to gender stereotypes.” [Doc. 1 at 6]; see Smith v. City of Salem, Ohio, 378 F.3d 566, 574 (6th Cir. 2004) (“It follows [from Price Waterhouse] that employers who discriminate against men because they . . . act femininely are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.”). That is a claim of discrimination because of sex. And Koren has evidence that Ohio Bell discriminated against him because Koren took his husband’s last name—failing to conform with the male stereotype.
6/
The Court’s analysis of Koren’s Title VII claims is also applicable to his Ohio state-law claims. Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421 N.E.2d 128, 131 (Ohio 1981) (“[F]ederal case law interpreting Title VII . . . is generally applicable to cases involving alleged violations of [O.]R.C. Chapter 4112.”).
-8-

Case No. 1:11-CV-2674 Gwin, J.
“[A] plaintiff hoping to succeed on a claim of sex stereotyping [must] show that he fails to act and/or identify with his or her gender, . . . as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006) (internal quotation marks omitted) (“Later cases applying Price Waterhouse have interpreted it as applying where gender non-conformance is demonstrable through the plaintiff’s appearance or behavior.”) Koren’s position is that changing his name upon marriage was a nonconforming “behavior” that supports his gender discrimination claim under a Price Waterhouse sexstereotyping theory. Ohio Bell disagrees and attempts to frame Koren’s claims as a simple attempt “to bootstrap protection for sexual orientation into Title VII” as prohibited by Vickers. Id. at 764.7/
The Court agrees with Koren: homosexual males do not “by definition, fail to conform to the traditional gender norms” by changing their surname upon marriage. Vickers, 453 F.3d at 764 (emphasis added). And here, Koren chose to take his spouse’s surname—a “traditionally” feminine practice—and his co-workers and superiors observed that gender non-conformance when Koren requested to be called by his married name. Vickers does “not suggest that [a plaintiff’s] claim fails merely because he has been classified . . . as a homosexual. Rather, [the] claim fails [when the plaintiff] has failed to allege that he did not conform to traditional gender stereotypes in any observable way at work.” Vickers, 453 F.3d at 764.
Koren has alleged just such a failure to conform. And he says that Miceli “harbored ill-will” because he changed his name but that she would not have done so if a female employee had changed
7/
Ohio Bell correctly points out that “[u]nder Title VII, sexual orientation is not a prohibited basis for discriminatory acts.” Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516, 519 (6th Cir. 2011) (internal quotation marks omitted); see also Cooke v. SGS Tool Co., No. 19675, 2000 W L 487730, at *3 (Ohio Ct. App. Apr. 26, 2000) (Ohio anti-discrimination laws “do not extend to sexual orientation.”). But in its motion for summary judgment, Ohio Bell doesn’t argue that it ever did discriminate against Koren because he is homosexual. Ohio Bell may, of course, make that argument to the jury at trial.
-9-

Case No. 1:11-CV-2674 Gwin, J. her name. Koren testified that Miceli refused to call him by his married name, that Miceli went out of her way to call him by his previous last name, and that Miceli informed him that she did not recognize same-sex marriages. See [Doc. 24-1 at 12-13]. (Miceli denies those ill-will allegations. See [Doc. 27-2 at 21-22].) And that ill-will, Koren says, resulted in seven unexcused absences and, ultimately, his termination. Accordingly, there is a “genuine dispute as to [] material fact[s],” Fed. R. Civ. P 56(a), and summary judgment is inappropriate on Koren’s sex-stereotype theory. 2. Legitimacy and Pretext
Ohio Bell next argues, based on the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) three-step burden-shifting framework, that it terminated Koren for a “legitimate, nondiscriminatory reason”: his seven unexcused absences.8/ [Doc. 25 at 16-17]. As Ohio Bell argues, Koren’s nine missed days legitimately resulted in the seven unexcused absences, in conformance with the Collective Bargaining Agreement. [Doc. 29 at 9].
In response, Koren argues that his seven unexcused absences (to be with his dying father) are a pretext for gender discrimination. “Especially relevant to [a showing of pretext] would be evidence that [other] employees [incurring absences due to family deaths] were nevertheless retained.” McDonnell Douglas, 411 U.S. at 804. And according to Moughan, in the past, Ohio Bell had flexibly applied the Collective Bargaining Agreement for employees in special situations, and leave of absences had been allowed without being credited unexcused absences. [Doc. 27-4 at 8-9]. Moughan testified that “over the fifteen years and the forty-three years [she’d] been a steward . . .
8/
“This framework first requires that the plaintiff establish a prima facie case. Once a prima facie case has been shown, the plaintiff is entitled to a presumption that the defendant discriminated against him or her in violation of Title VII. The defendant then bears the burden of production to put forth a legitimate, nondiscriminatory reason for the complained of adverse treatment. . . . [T]he plaintiff then needs to show that the defendants legitimate nondiscriminatory reason was a pretext for discrimination.” Wright v. Murray Guard, Inc., 455 F.3d 702, 706-07 (6th Cir. 2006) (internal citations and quotation marks omitted).
-10-

Case No. 1:11-CV-2674 Gwin, J. she had never seen this kind of a reaction to someone with a dying parent.” [Id. at 8]. Koren also claims that another Ohio Bell employee “was told that he could have unlimited time off” for funeral leave when his girlfriend died. [Doc. 24-1 at 23].9/ Miceli disagrees with these contentions and says that she “had to go by the contract.” [Doc. 27-2 at 42].
“Other evidence that may be relevant to any showing of pretext includes facts as to [Ohio Bell’s] treatment of [Koren] during his prior term of employment.” McDonnell Douglas, 411 U.S. at 804. And Koren’s facts indicate he was treated poorly due to his failure to conform to gender norms.
Accordingly, there are sufficient facts to support Koren’s contention that Ohio Bell’s proffered legitimate, nondiscriminatory reason for firing him was a pretext for discriminating against him for failure to conform to gender norms; Ohio Bell is not entitled to judgment on Koren’s gender discrimination claims.
IV. For the foregoing reasons, the Court DENIES Ohio Bell’s motion for summary judgment. IT IS SO ORDERED.

Dated: August 14, 2012

s/

James S. Gwin

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

9/
In addition, there is evidence in the record that Moughan had, at some point, come to an agreement that Koren would only be credited three unexcused absences, allowing him to be converted rather than terminated. However, Ohio Bell challenges this evidence’s admissibility. [Doc. 29 at 11]. If this action proceeds to trial, the admissibility of this evidence will need to be determined. However, for the purposes of this motion, the Court has no need to consider this information because other evidence is sufficient to show genuinely disputed material fact concerning whether Ohio Bell’s reason for termination was pretext.
-11-

 Case: 1:11-cv-02674-JG Doc #: 53 Filed: 09/07/12 1 of 1. PageID #: 855
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

JASON W. KOREN,

)

)

Plaintiff,

)

)

vs.

)

)

OHIO BELL TELEPHONE CO.,

)

)

Defendant.

)

CASE NO. 1:11CV02674 JUDGE JAMES S. GWIN ORDER

Upon representation of counsel that the above-captioned case has been settled between the parties, IT IS ORDERED that the docket be marked, "settled and dismissed with prejudice.”
Any subsequent order setting forth different terms and conditions relative to the settlement and dismissal of the within action shall supersede the within order.
FURTHER, the Court retains continuing jurisdiction to resolve disputes concerning the memorialization of this settlement agreement. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).

Dated: September 7, 2012

s/ James S. Gwin JUDGE JAMES S. GWIN UNITED STATES DISTRICT JUDGE

 Case: 1:11-cv-2674 As of: 03/22/2014 06:08 PM EDT 1 of 5
Cat03,Standard,Termed,Vecchiar
U.S. District Court Northern District of Ohio (Cleveland) CIVIL DOCKET FOR CASE #: 1:11−cv−02674−JG

Koren v. Ohio Bell Telephone Co. Assigned to: Judge James S. Gwin Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff Jason W. Koren

Date Filed: 12/09/2011 Date Terminated: 09/07/2012 Jury Demand: Plaintiff Nature of Suit: 445 Civil Rights: Americans with Disabilities − Employment Jurisdiction: Federal Question
represented by Angela D. Krupar INVALID ADDRESS − Dworken & Bernstein − Painesville 60 South Park Place Painesville, OH 44077 440−352−3391 Email: akrupar@dworkenlaw.com (Inactive) ATTORNEY TO BE NOTICED
Richard N. Selby , II Dworken & Bernstein − Painesville 60 South Park Place Painesville, OH 44077 440−352−3391 Fax: 440−352−3469 Email: rselby@dworkenlaw.com ATTORNEY TO BE NOTICED

V. Defendant Ohio Bell Telephone Company

represented by Donald C. Bulea Giffen & Kaminski Ste. 1600 1300 East Ninth Street Cleveland, OH 44114 216−621−5161 Fax: 216−621−2399 Email: dbulea@thinkgk.com ATTORNEY TO BE NOTICED
Kerin L. Kaminski Giffen & Kaminski Ste. 1600 1300 East Ninth Street Cleveland, OH 44114 216−621−5161 Fax: 216−621−2399 Email: kkaminski@thinkgk.com ATTORNEY TO BE NOTICED

Date Filed 12/09/2011

# Docket Text
1 Complaint with jury demand against Ohio Bell Telephone Co. Filed by Jason Koren. (Attachments: # 1 Exhibit A−EEOC letter, # 2 Civil Cover Sheet, # 3 Summons) (Selby, Richard) Modified text on 12/12/2011 (C,B). Modified to add jury demand on 8/24/2012 (H,LA). (Entered: 12/09/2011)

Case: 1:11-cv-2674 As of: 03/22/2014 06:08 PM EDT 2 of 5

12/09/2011 12/09/2011 12/12/2011 12/16/2011 12/22/2011 12/27/2011 12/28/2011 12/28/2011 12/29/2011 02/03/2012 02/03/2012 02/09/2012 02/13/2012 02/13/2012 02/16/2012 03/08/2012 03/13/2012
03/14/2012 03/14/2012

Judge James S. Gwin assigned to case. (C,B) (Entered: 12/09/2011)
Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In the event of a referral, case will be assigned to Magistrate Judge Vecchiarelli. (C,B) (Entered: 12/12/2011)
2 Original Summons and Magistrate Consent Form issued for service upon Ohio Bell Telephone Co. (Attachments: # 1 Magistrate Consent Form) (C,B) (Entered: 12/12/2011)
3 Return of Service by certified mail executed upon Ohio Bell Telephone Co. on 12/14/2011, filed on behalf of Jason W. Koren Related document(s) 1 . (Attachments: # 1 Exhibit A−Executed Green Card)(Selby, Richard) (Entered: 12/16/2011)
4 Stipulated Motion for leave to Plead filed by Defendant Ohio Bell Telephone Co.. (Bulea, Donald) (Entered: 12/22/2011)
5 Marginal Entry Stipulation & Order signed by Judge James S. Gwin on 12/27/11 granting the parties' stipulated motion for an extension until 2/3/12 for the filing of an answer by defendant. (Related Doc. 4 ) (M,G) (Entered: 12/27/2011)
6 Magistrate Consent Package issued on 12/28/11 on behalf of Judge James S. Gwin. (M,G) (Entered: 12/28/2011)
7 Case Management Conference Scheduling Order signed by Judge James S. Gwin on 12/28/11 setting a conference for 3/14/12 at 4:00 p.m., Chambers 18A (Cleveland). (M,G) (Entered: 12/28/2011)
8 Notice of appearance of counsel by Kerin L. Kaminski filed by on behalf of Ohio Bell Telephone Co.. (Kaminski, Kerin) Modified text on 12/29/2011 (H,KR). (Entered: 12/29/2011)
9 Answer to 1 Complaint filed by Ohio Bell Telephone Co.. (Bulea, Donald) (Entered: 02/03/2012)
10 Corporate Disclosure Statement identifying Corporate Parent AT&T Teleholdings, Inc. for Ohio Bell Telephone Co. filed by Ohio Bell Telephone Co.. (Bulea, Donald) (Entered: 02/03/2012)
11 Stipulated Motion to Correct Name of Defendant filed by Defendant Ohio Bell Telephone Co.. (Bulea, Donald) (Entered: 02/09/2012)
12 Marginal Entry Order signed by Judge James S. Gwin on 2/13/12 granting the parties' stipulated motion to correct name of defendant to The Ohio Bell Telephone Company. (Related Doc. 11 ) (M,G) (Entered: 02/13/2012)
13 Motion to appear at case management conference via telephone by Plaintiff Jason W. Koren. Related document(s) 7 . (Selby, Richard) Modified on 2/14/2012 (H,KR). (Entered: 02/13/2012)
14 Marginal Entry Order signed by Judge James S. Gwin on 2/16/12 granting plaintiff's motion to attend the case management conference via telephone. (Related Doc. 13 ) (M,G) (Entered: 02/16/2012)
15 Report of Parties' Planning Meeting , parties do not consent to this case being assigned to the magistrate judge, filed by Ohio Bell Telephone Company. (Bulea, Donald) (Entered: 03/08/2012)
IMPORTANT: Notice [non−document] that the case management conference scheduled for 3/14/12 at 4:00 p.m., is rescheduled to 11:00 a.m. on 3/14/12 with Judge James S. Gwin. The conference will now be conducted via telephone with all counsel, parties and persons with full settlement authority required to participate. Counsel will be notified via e−mail of the Court's contact information. (Related Doc. 7 ) (M,G) (Entered: 03/13/2012)
16 Minutes of case management conference before Judge James S. Gwin on 3/14/12. (Court Reporter: none; Time: 15 min.) (M,G) (Entered: 03/14/2012)
17 Case Management Conference Plan/Order signed by Judge James S. Gwin on 3/14/12. Case assigned to the Standard Track. Parties to be joined and pleadings

Case: 1:11-cv-2674 As of: 03/22/2014 06:08 PM EDT 3 of 5

03/14/2012 03/14/2012 05/22/2012 05/22/2012 05/22/2012 05/22/2012 06/04/2012 06/04/2012
06/12/2012 06/12/2012
06/25/2012
07/02/2012 07/02/2012 07/06/2012 07/09/2012 07/10/2012

amended by 3/14/12. Preliminary discovery to be completed by 5/28/12. Dispositive motions to be filed by 6/4/12 with responses due 6/18/12 and replies due by 6/25/12. All discovery due by 8/27/12. Status conference set for 7/10/12 at 12:00 noon and final pretrial conference set for 9/5/12 at 12:00 noon, both in Chambers 18A (Cleveland). Bench trial is assigned on a two−week standby basis beginning 9/10/12 at 8:00 a.m., Courtroom 18A (Cleveland). (M,G)(M,G) (Entered: 03/14/2012)
18 Order signed by Judge James S. Gwin on 3/14/12 that plaintiff identify experts by 4/9/12 and defendant shall make identification by 4/30/12. (M,G) (Entered: 03/14/2012)
19 Order signed by Judge James S. Gwin on 3/14/12 limiting each side to a total of 350 minutes for depositions. (M,G) (Entered: 03/14/2012)
20 Subpoena Returned Executed; served upon Ms. Colleen Moughan by personal service by taping subpoena to door on 5/21/2012. (B,B) (Entered: 05/22/2012)
21 Subpoena Returned Executed; served upon Ms. Noreen Jadus by personal service on 5/21/2012. (B,B) (Entered: 05/22/2012)
22 Subpoena Returned Executed; served upon Terez E. Woods by via fax − receipt e−mail on 5/21/2012. (B,B) (Entered: 05/22/2012)
23 Subpoena Returned Executed; served upon Ms. Kimberly Wynn by via fax − received via e−mail on 5/21/2012. (B,B) (Entered: 05/22/2012)
24 Notice of Filing Deposition Transcripts filed by Ohio Bell Telephone Company. (Attachments: # 1 Jason Koren Deposition Transcript, # 2 Noreen Jadus Deposition Transcript)(Bulea, Donald) (Entered: 06/04/2012)
25 Motion for summary judgment filed by Defendant Ohio Bell Telephone Company. (Attachments: # 1 Exhibit 1 − Koren Deposition Exerpts, # 2 Exhibit 2 − James Tench Affidavit, # 3 Exhibit 3 − Kim Miceli Affidavit, # 4 Exhibit 4 − Jadus Deposition Exerpts, # 5 Exhibit 5 − Scott Willis Affidavit, # 6 Exhibit 6 − Article 18 of Bargaining Agreement, # 7 Exhibit 7 − Attendance Policy, # 8 Exhibit 8 − 10−05−09 Final Warning Letter, # 9 Exhibit 9 − 11−06−09 Grievance Report, # 10 Exhibit 10 − 10−23−09 Letter re Limited Term Service Reps)(Bulea, Donald) (Entered: 06/04/2012)
26 Motion for extension of time until June 25, 2012 to Respond to Def MSJ filed by Plaintiff Jason W. Koren. Related document(s) 25 . (Selby, Richard) (Entered: 06/12/2012)
Order [non−document] entered by Judge James S. Gwin on 6/12/12 granting plaintiff's motion for an extension until 6/25/12 to respond to defendant's motion for summary judgment. The reply date is extended to 7/1/12. There will be no further extensions. (Related Doc. 26 ) (M,G) (Entered: 06/12/2012)
27 Opposition to 25 Motion for summary judgment filed by Jason W. Koren. (Attachments: # 1 Exhibit A−Koren Depo Transcript, # 2 Exhibit B−Micel Depo Transcript, # 3 Exhibit C−Tench Depo Transcript, # 4 Exhibit D−Moughan Depo Transcript, # 5 Exhibit E−Willis Depo Transcript)(Selby, Richard) (Entered: 06/25/2012)
28 Motion to attend by telephone filed by Plaintiff Jason W. Koren. (Selby, Richard) (Entered: 07/02/2012)
29 Reply in support of 25 Motion for summary judgment filed by Ohio Bell Telephone Company. (Bulea, Donald) Modified text on 7/3/2012 (H,LA). (Entered: 07/02/2012)
30 Joint Motion to continue 07/10/2012 Status Conference filed by Defendant Ohio Bell Telephone Company. (Bulea, Donald) (Entered: 07/06/2012)
31 Marginal Entry Order signed by Judge James S. Gwin on 7/9/12 granting the parties' joint motion to continue the status conference; conference reset for 7/30/12 at 8:30 a.m., Chambers 18A (Cleveland). (Related Doc. 30 ) (M,G) (Entered: 07/09/2012)
Order [non−document] entered by Judge James S. Gwin on 7/10/12 denying as moot plaintiff's motion to attend the 7/10/12 status conference via telephone. (Related Doc.

Case: 1:11-cv-2674 As of: 03/22/2014 06:08 PM EDT 4 of 5

07/12/2012 07/13/2012 07/28/2012
07/31/2012 07/31/2012 08/14/2012 08/22/2012 08/24/2012 08/24/2012 08/31/2012 08/31/2012 08/31/2012 08/31/2012
08/31/2012 08/31/2012 09/04/2012 09/05/2012
09/05/2012

28 ) (M,G) (Entered: 07/10/2012)
32 Motion to attend 7/30/2012 Status Conference by telephone filed by Plaintiff Jason W. Koren. Related document(s) 31 . (Selby, Richard) (Entered: 07/12/2012)
Order [non−document] entered by Judge James S. Gwin on 7/13/12 granting plaintiff's motion to attend the status conference via telephone. (Related Doc. 32 ) (M,G) (Entered: 07/13/2012)
IMPORTANT: Notice [non−document] that due to an unexpected scheduling conflict the status conference with Judge James S. Gwin set for 7/30/12 at 8:30 a.m., is reset to 3:30 p.m. The status conference will now be conducted via telephone for all participants. Counsel will be advised via e−mail of the Court's contact information. (Related Doc. 31 ) (M,G) (Entered: 07/28/2012)
33 Minutes of status conference before Judge James S. Gwin on 7/30/12. (Court Reporter: none; Time: 25 min.) (M,G) (Entered: 07/31/2012)
IMPORTANT: Notice [non−document] that the final pretrial conference has been rescheduled to 9/6/12 at 11:00 a.m., Chambers 18A (Cleveland). (M,G) (Entered: 07/31/2012)
34 Opinion and Order signed by Judge James S. Gwin on 8/14/12 denying defendant's motion for summary judgment. (Related Doc. 25 ) (M,G) (Entered: 08/14/2012)
35 Subpoena Returned Executed; served upon Mark Lipaj Insurance Agency Inc., c/o Mark Lipaj by Personal Service on 08/22/2012 filed on behalf of Ohio Bell Telephone Company (Bulea, Donald) (Entered: 08/22/2012)
Remark: Counsel shall note that the trial scheduled for 9/10/12 at 8:00 a.m., will be a jury trial and not a bench trial as noted in the Court's trial order. (Related Docs. 1 , 17 ) (M,G) (Entered: 08/24/2012)
36 Subpoena Returned Executed; served upon State Farm Insurance, c/o Dick McClement by Personal Service on 08/23/2012 filed on behalf of Ohio Bell Telephone Company (Bulea, Donald) (Entered: 08/24/2012)
37 Attorney Appearance of Angela Krupar by Richard N. Selby, II filed by on behalf of Jason W. Koren. (Selby, Richard) Modified on 9/5/2012 to add counsel to docket and regenerate NEF's to new counsel. (H,LA). (Entered: 08/31/2012)
38 Proposed Jury Instructions filed by Jason W. Koren. (Selby, Richard) (Entered: 08/31/2012)
39 Proposed Voir Dire filed by Jason W. Koren. (Selby, Richard) (Entered: 08/31/2012)
40 Joint Proposed Stipulation and Order filed by Ohio Bell Telephone Company. (Attachments: # 1 Appendix B − Plaintiff's Exhibit List, # 2 Appendix B − Defendant's Exhibit List, # 3 Appendix C − Plaintiff's Witness List, # 4 Affidavit C − Defendant's Witness List)(Bulea, Donald) Modified to note unsigned by counsel on 9/5/2012 (H,LA). (Entered: 08/31/2012)
41 Proposed Jury Instructions filed by Ohio Bell Telephone Company. (Bulea, Donald) (Entered: 08/31/2012)
42 Proposed Voir Dire filed by Ohio Bell Telephone Company. (Bulea, Donald) (Entered: 08/31/2012)
43 Final Pretrial Order approved by Judge James S. Gwin on 9/4/12. (M,G) (Entered: 09/04/2012)
44 Motion in limine to exclude the testimony from or evidence of Erica Dismukes, Rick Plant, Deidre Thomas, Andrew Wege, Freeze McCarter, Martin Lopez, and Mark Stanislawski filed by Plaintiff Jason W. Koren. (Attachments: # 1 Exhibit A−Def Resp/Obj to Pl Discovery, # 2 Exhibit B−Def Initial Disclosures)(Selby, Richard) Modified text on 9/10/2012 (H,LA). (Entered: 09/05/2012)
45 Motion in limine to exclude references by defendant to plaintiff's private State Farm Disability Insurance Policy filed by Plaintiff Jason W. Koren. (Attachments: # 1

Case: 1:11-cv-2674 As of: 03/22/2014 06:08 PM EDT 5 of 5

09/05/2012 09/05/2012 09/05/2012
09/05/2012 09/06/2012 09/06/2012 09/07/2012 09/07/2012

Exhibit A−Def Ameritech Disability Plan)(Selby, Richard) Modified text on 9/10/2012 (H,LA). (Entered: 09/05/2012)
46 Motion to bifurcate filed by Defendant Ohio Bell Telephone Company. (Bulea, Donald) (Entered: 09/05/2012)
47 Motion in limine to Exclude Opinion Testimony that Ohio Bell Caused Plaintiff's Disability filed by Defendant Ohio Bell Telephone Company. (Attachments: # 1 Exhibit 1 − 01/26/2011 SSA Decision)(Bulea, Donald) (Entered: 09/05/2012)
48 Motion in limine to Limit Any Award of Back Pay to Time Period Before Plaintiff Became Totally Disabled filed by Defendant Ohio Bell Telephone Company. (Attachments: # 1 Exhibit 1 − 01/26/2011 SSA Decision)(Bulea, Donald) (Entered: 09/05/2012)
49 Motion in limine to Strike Plaintiff's Demand for, or an Award of, Front Pay filed by Defendant Ohio Bell Telephone Company. (Attachments: # 1 Exhibit 1 − 01/26/2011 SSA Decision)(Bulea, Donald) (Entered: 09/05/2012)
50 Minutes of final pretrial conference before Judge James S. Gwin on 9/6/12. (Court Reporter: none; Time: 1 hr. 15 min.) (M,G) (Entered: 09/06/2012)
51 Order signed by Judge James S. Gwin on 9/6/12 setting forth trial procedure and allocating 350 minutes per side for the presentation of their respective cases. (M,G) (Entered: 09/06/2012)
52 Witness List (Revised) filed by Ohio Bell Telephone Company. (Bulea, Donald) (Entered: 09/07/2012)
53 Order signed by Judge James S. Gwin on 9/7/12. Upon representation of counsel for plaintiff that all issues have been resolved the docket is marked settled and dismissed with prejudice. The Court retains jurisdiction as set forth in this entry. (M,G) (Entered: 09/07/2012)


Gay employee alleged that he was fired because he did not conform to the gender stereotype and he had AIDS.