Hickle v. Am. Multi-Cinema, Inc.

927 F.3d 945

Jared HICKLE, Plaintiff-Appellant,

v.AMERICAN MULTI-CINEMA, INC., Defendant-Appellee.

No. 18-4131

United States Court of Appeals, Sixth Circuit.

Decided and Filed: June 20, 2019

Rehearing En Banc Denied August 13, 2019

ON BRIEF: Peter G. Friedmann, THE FRIEDMANN FIRM LLC, Columbus, Ohio, Gregory R. Mansell, MANSELL LAW LLC, Columbus, Ohio, for Appellant. Rebecca J. Bennett, Russell T. Rendall, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Cleveland, Ohio, for Appellee.

Before: BOGGS, MOORE, and STRANCH, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

In 2015, Jared Hickle was working for American Multi-Cinema, Inc. ("AMC") while also serving in the Ohio Army National Guard. AMC fired Hickle in April of that year. AMC asserts that the termination was for "unprofessional behavior" and "impeding [an] investigation"; Hickle claims that it stemmed from AMC's anti-military animus and therefore violated his rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and analogous Ohio law. The district court granted AMC's motion for summary judgment on Hickle's wrongful-termination claims and later entered judgment in AMC's favor. This was an error. Hickle gathered evidence during discovery that would allow a reasonable jury to find that his military service was a motivating factor in AMC's termination decision. Therefore, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

The record before us is full of disputes of fact, with the parties presenting divergent, if not wholly contradictory, accounts of crucial events. Because we are reviewing a grant of summary judgment in AMC's favor, the facts presented below are described in the light most favorable to Hickle, the non-moving party, and with all reasonable inferences drawn in his favor. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Hickle's Career at AMC

Jared Hickle began working for AMC Lennox Town Center Theater in 2004, while he was still in high school. R. 29-1 (Hickle Dep. at 66) (Page ID #121). In 2006, he was promoted from crew member to Operations Coordinator at Easton Town Center Theater. Id. at 91 (Page ID #127). Then, in 2008, he joined the Ohio Army National Guard. Id. at 57 (Page ID #118). After joining the National Guard but before leaving for training, Hickle interviewed for a management position with the Easton General Manager, Tim Kalman. Id. at 125–27 (Page ID #135–36). During the interview, Hickle told Kalman that he was going to have to leave for military training for approximately six months; Kalman ended the interview immediately. Id. at 126–27 (Page ID #136). The person who got the promotion later told Hickle: "Thanks for joining the military. I just got promoted." Id. at 384–85 (Page ID #200).

AMC did promote Hickle to a management position when he returned from military training, and in April 2013 Hickle was promoted to Kitchen Manager at the Easton Theater. Id. at 112–16 (Page ID #132–33). In the interim, Hickle continued his military service, including serving for over a year in Afghanistan. Id. at 43–44 (Page ID #115).

Although AMC never prevented Hickle from fulfilling his military obligations or denied him time off, one Senior Manager, Jacqueline Adler, repeatedly expressed disapproval when Hickle had to take leave for military duty. First, Adler told Hickle "that [his] requesting time off was always frustrating to her," that "[i]t always put a major issue on her schedule," and "[s]he even made statements [that Hickle] should be moved to the front of house because there's more managers out there and it wouldn't be such a [headache] on her." Id. at 338–39 (Page ID #189).

The next negative comment from Adler happened in June 2014. Id. at 339 (Page ID #189). Hickle was scheduled to close on the Thursday preceding a military obligation that was set to begin on Friday. Id. Because closing shifts often ended well after midnight and orders could commence at midnight, Hickle could not close that Thursday. Id. at 102–03, 339–40 (Page ID #130, 189). When he told that to Adler, she told him that he "need[ed] to find another job, as [he] no longer met the ... minimum qualifications for being employed at AMC."¹ Id. at 339–40 (Page ID #189). He reported this comment to Kalman, the General Manager, who said "he would take care of it." Id.

When Hickle returned from his military obligation, he requested a meeting with Kalman and Adler about Adler's comments, and during that meeting Hickle provided Kalman with a pamphlet on USERRA obligations. Id. at 380–82 (Page ID #199–200). Hickle wanted to ensure he would not be retaliated against for his service. Id. at 381 (Page ID #199). When Hickle gave Kalman the pamphlet, Kalman asked Hickle why he was giving it to Kalman, to which Hickle responded, "I just wanted you to have it"; Kalman then asked Hickle whether he had ever denied Hickle time off, to which Hickle responded "[n]o, I just want you to have it." R. 36 (Kalman Dep. at 86) (Page ID #1079). Kalman never attended any AMC training on USERRA compliance or asked for information on USERRA compliance. Id. at 87 (Page ID #1080). He knew that AMC "need[ed] to honor their [sic] days off," but "never ... asked for specifics." Id.

Adler continued to insinuate that Hickle could or should be fired for taking time off for military duty. In February 2015, as Hickle was requesting time off for a military obligation, Adler commented that Hickle was "taking off the whole summer" and "[w]e just need to get [Hickle] replaced." R. 29-1 (Hickle Dep. at 341) (Page ID #189).

B. April 2015

Adler's final relevant statement was a direct threat to Hickle's job, made the same month he was fired. In April 2015, Hickle was talking with Adler and a co-worker, Jeff Keeton, about upcoming movie releases. Id. at 327–28 (Page ID #186). Conversation turned to the upcoming "Avengers weekend,"² which was expected to draw large crowds to the theater; Hickle reminded Adler that he would be gone that weekend because of a military drill. Id. at 328 (Page ID #186). Adler told Hickle that he would be fired if he missed that weekend. Id. When Hickle said that firing him for missing work due to military obligations would be illegal, Adler responded by saying "that's okay. We will find something else to terminate you on."³ Id. Keeton heard Adler tell Hickle that requesting time off "would not be possible because it would be a busy weekend and [Hickle] could be terminated," and Keeton thought Adler's threat to fire Hickle was "serious." R. 35 (Keeton Dep. at 11–12) (Page ID #956–57).

We turn next to the end of Hickle's shift that began on Friday, April 17, 2015 and ended in what the defendant refers to as the "chicken finger incident." R. 33-3 (Apr. 17, 2015 Hickle Statement) (Page ID #846); Appellee Br. at 4. As Kitchen Manager, Hickle was responsible for supervising the employees who worked in the AMC kitchen. According to Hickle, one of the employees, Dominique Washington, told him that another employee, Quinton Branham, had asked her to make extra food so that Branham could take the food home at the end of the night, but she refused. R. 33-3 (Apr. 17, 2015 Hickle Statement) (Page ID #846); see also R. 30-1 (Washington Statement) (Page ID #525). After the kitchen closed, Hickle found a to-go container with ten chicken fingers in it (more than the amount an employee was allowed to take home for a shift meal). Branham said it was his but that he did not make the extra chicken fingers illicitly. R. 33-3 (Apr. 17, 2015 Hickle Statement) (Page ID #846); see also R. 29-1 (Hickle Dep. at 172) (Page ID #147). Rather, Branham claimed that the extra fingers were abandoned and otherwise would have been thrown out. R. 33-3 (Apr. 17, 2015 Hickle Statement) (Page ID #846–47). Branham then began cursing and speaking inappropriately toward Hickle; Hickle asserts that he did not lose his temper or otherwise act unprofessionally toward Branham, although Branham reported otherwise to AMC. Id. ; R. 30-1 (Branham Statements) (Page ID #518–23). Hickle then told the other employees that they could not take food home that night and instead should take a break to eat their meals at the theater. One employee, Dwight Williams, objected to Hickle's command and started cursing at Hickle and otherwise acting disrespectfully. R. 33-3 (Apr. 17, 2015 Hickle Statement) (Page ID #846–47); see also R. 30-1 (Williams Statement) (Page ID #533). Again, Hickle maintains he did not respond in kind, although Williams reported otherwise to AMC. R. 33-3 (Apr. 17, 2015 Hickle Statement) (Page ID #846–47); R. 30-1 (Williams Statement) (Page ID #533). Hickle typed up a statement of events before he went home for the night. R. 33-3 (Apr. 17, 2015 Hickle Statement) (Page ID #846–47). Branham and Williams were eventually terminated for their part in the incident. R. 29-1 (Hickle Dep. at 272) (Page ID #172).

The next day, April 18, 2015, a co-worker named Ricky Jones told Hickle that Adler was trying to get Hickle fired. R. 33-6 (Apr. 19, 2015 Hickle Statement) (Page ID #850). Adler, as a Senior Manager, did not have the authority to terminate Hickle. She was plotting, according to Jones, to get Hickle fired by having employees write complaints about Hickle that would be sent to AMC headquarters, eventually causing Hickle's termination. Id. Jones also mentioned a plot to have someone get into an argument with Hickle in front of other staff members so that others could "write the same statement with a story they had concocted beforehand ... [to] ensure that [Hickle] would be terminated," but there was no suggestion that any such plan came to fruition. Id. Though Jones's written statement does not mention Adler as the mastermind of the plot, R. 32-2 (Jones Statement) (Page ID #747), Hickle recalls that Jones specifically told him that "it was Jackie's plot." R. 29-1 (Hickle Dep.) (Page ID...