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Carter v. Siemens Business Services

September 2, 2010

THOMAS J. CARTER, PLAINTIFF,
v.
SIEMENS BUSINESS SERVICES, LLC, BRUCE YORK, DAVID FRAZIER, AND DONALD OLNEY, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge

Thomas Carter has sued Siemens Business Services, LLC, Donald Olney, Bruce York and David Frazier*fn1 for discrimination under the Uniformed Services Employment and Reemployment Act (USERRA), 38 U.S.C. § 4301(a)(3). Olney, York and Frazier have moved to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) and have also moved for summary judgment. For the reasons set forth below, the Court grants the motion to dismiss only as to defendant Olney and denies the motion for summary judgment.

Facts

The Court takes the following facts from the allegations in Carter's complaint and parties' affidavits submitted for purposes of defendants' Rule 12(b)(2) motion. Any additional facts that are relevant to the defendants' motion for summary judgment are discussed in the section of this decision concerning that motion.

Carter held the rank of captain when he retired from the United States Army in 1996. In February 2005, Siemens hired Carter as a project management engineer in its problem management group. Carter worked in Lake Zurich, Illinois but reported to Siemens' main facility located in Mason, Ohio. He was the only member of the problem management group based in Illinois.

Olney, a resident of Ohio, was a problem management engineer at Siemens' facility in Mason, Ohio. In November 2005, while still based in Ohio, Olney became acting manager of the front office support group on a temporary basis. As acting manager, Olney became Carter's supervisor. In his temporary role, he never traveled to Illinois. Olney last visited Illinois while on a Siemens business trip in September 2005. Siemens paid his expenses. Olney had no contact with Carter on this business trip.

York is currently a resident of Tennessee and works for Siemens as a human resources consultant. He advises managers regarding whether, in a given situation, employee discipline or termination is proper under the company's employment policies and procedures. York has been to Illinois once, in June 2004, while on a Siemens business trip. Because Carter had not yet been hired, York had no contact with him on that trip.

Frazier resides in Ohio and works at Siemens' office in Mason, Ohio. Frazier began working for Siemens as senior manager for service delivery. In January 2006, he was promoted to director of the competency center. He made one business trip to Siemens' Chicago facility in 2005, to attend a mandatory staff meeting. The meeting lasted less than a full day and did not concern Carter. The parties do not explain Frazier's role as director, but Carter claims that Frazier manages his department and had supervisory authority over him and Olney.

Carter alleges that on February 8, 2006, he submitted to Frazier an internal complaint alleging that Olney had harassed him. That same afternoon, Frazier and Carter spoke by phone. Frazier stated that he would take Olney with him to Chicago on February 14 so that they could meet with Carter and discuss their differences. Carter also alleges that he spoke with Barrett on the morning of February 8. Carter alleges that he mentioned to her that he and Frazier were scheduled to discuss Olney's harassment that afternoon.

Carter attached to his complaint an e-mail thread that includes an e-mail Barrett drafted and sent to herself on February 9, 2006 at 3:57 a.m. She states in the e-mail that on the morning of February 8, she and Carter were discussing work-related matters when he "started to rant about how upset he was at the 'one that need not be mentioned' and that he needs to talk to [Frazier] right away." Compl., Ex. A. Barrett's e-mail states that she listened to Carter and could not recall whether she said anything to him. She also stated that "[t]hen he said 'I'm so mad if I was down there, I'd assemble my blahblah troop and kill him.' He used a military term where there is blahblah." Id. Barrett stated in the e-mail that she typed the note because she "[w]oke up [at] 3am on 02/09/2005 and realized that [Carter] made a threat to kill [Olney]." Id. The same e-mail thread includes a message from Barrett to York dated February 10, 2006, sent at 1:22 p.m. It states that "per [York's] request this was sent to myself . . . and was read to David Frazier on February 9, 2006 at 8:00 a.m." Id.

On February 10, 2006 at 2:26 p.m., York sent an e-mail to Siemens attorney Philip Paseltiner marked "urgent," stating that Carter had made a threat against Olney. The e-mail explained that "[i]n a telecom . . . Carter (located in Chicago) voiced a threat to kill his manager (Don Olney) who is located in Mason, OH, to a co-worker, Debra Barrett." Compl., Ex. B. York included Barrett's e-mail thread in the message. York stated that Barrett initially "just passed this off" but then "realized that [Carter] had made a life-threatening comment and today shared the matter with [Olney] and their manager [Frazier]." Id. York also indicated that "[Carter] has a former military background perceived to be in the type of unit that was involved in killing." Id.

York explained to counsel other problems Siemens allegedly had with Carter. Carter's previous manager, Marshall Sizemore, had given Carter a verbal warning regarding complaints from female employees about the way he approaches women. Sizemore also addressed a customer complaint concerning an e-mail from Carter and had Carter send communications to him for screening. York also alleged that Carter had refused to recognize Olney as manager by going around him and not copying him on communications. York noted that he "take[s] this type of threat seriously" and that Carter "has some history." He concluded his message by recommending Carter's termination.

Carter states that on and after February 8, he reported to work at Siemens' Lake Zurich facility. On Monday, February 13, the local supervisor instructed him to go to a conference room to participate in a call with York. Carter alleges that York began the call by asking who he was going to kill. Carter replied, "nobody," and he asked York what he was talking about. York informed him that a co-worker had stated that Carter was going to kill someone and that the company was terminating him because of that statement.

Carter alleges that Siemens never investigated Barrett's statement and never reported it to law enforcement. He contends that Siemens terminated him because he had been in active military service, in a unit perceived to be "involved in killing." After terminating Carter, Siemens reported the alleged threat to the ...


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