MEMORANDUM AND ORDER
VRATIL, District Judge.
Plaintiff Joseph P. Amro, a senior engineer currently employed by The Boeing Company, brings suit for national origin discrimination in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq., disability discrimination in violation of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12117, and retaliation in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. at 2512.
The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
Statement of Undisputed Facts
From a judicial point of view, the difficult issues in this case are factual rather than legal. The task of understanding the facts has been daunting, and the Court's already laborious job has been considerably complicated by the manner in which plaintiff has presented its opposition to defendant's motion. D.Kan.Rule 56.1 provides in relevant part as follows:
In the Revised Scheduling Order (Doc. # 42) filed October 21, 1996, the Court also made the following specific order with respect to the format of summary judgment briefs:
The scheduling order also notified counsel of the following requirements with respect to the format of summary judgment briefs:
It would scarcely be an overstatement to say that plaintiff has violated every rule in the book with respect to his brief in opposition to defendant's summary judgment motion. Plaintiff does not consistently refer with particularity to those portions of the record upon which he relies. When he relies on facts not contained in movant's memorandum, he does not set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by D.Kan.Rule 56.1. In responding to Boeing's statement of undisputed facts, he does not first state the movant's numbered paragraph, then his response, to facilitate comparison. Of even greater concern, plaintiff does not specifically set forth in detail the reasons why he cannot truthfully admit or deny particular matters, and he does not fairly meet the substance of the matters asserted.
In all of these respects, except as otherwise noted below, plaintiff has failed to specifically controvert Boeing's statement of undisputed facts in a manner sufficient under D.Kan.Rule 56.1 to raise genuine issues of material fact. In finding that the following facts are undisputed, the Court disregards all facts not set forth in compliance with D.Kan. Rule 56.1.
The undisputed facts are as follows:
Plaintiff Joseph P. Amro, a male of Lebanese national origin, is a naturalized United States citizen who was born in Lebanon. He obtained a B.S. degree in mechanical engineering from Wichita State University (WSU) in May, 1984, and on October 15, 1984, he applied for an engineering position with Boeing in Wichita, Kansas. At the time, plaintiff was not a United States citizen. Plaintiff sought employment as an analyst in tool engineering, a tool designer or a planner, and Boeing hired him in December, 1984, as a "Planner 4-NC Programming" at a starting salary of $20,800.00 per year.
Plaintiff had begun work on a Masters' degree in mechanical engineering before Boeing hired him and he continued his graduate coursework at WSU while working as a full-time employee at Boeing. On September 6, 1985, plaintiff applied for tuition assistance from Boeing.
In 1988, Boeing phased out the military projects on which plaintiff had worked in Huntsville. It therefore gave plaintiff, along with other engineers, the opportunity to transfer to Wichita or Seattle in lieu of being laid off. Plaintiff chose Wichita because Wichita was his home and the cost of living was cheaper there. When plaintiff returned to Wichita in August of 1988, he initially worked as a liaison engineer. He was the "focal point" for his group, and Dennis Roat was his supervisor. As "focal point," plaintiff trained new engineers, gave out new work packages, and helped, supported and directed other engineers within the group. Plaintiff ranked 21 out of the 27 DM1 skill code engineers on the "B" performance totem.
Since December 6, 1989, plaintiff and other professional engineers at Boeing Wichita have been in a bargaining unit subject to a series of collective bargaining agreements. Under the collective bargaining agreement in effect from 1989 until 1992 (1989 CBA), Boeing reviewed engineers' salaries twice each year. Boeing agreed to establish a fund for selective salary adjustments at the end of each review period based on a percentage defined by the 1989 CBA, multiplied by the total bargaining unit salaries on the ending date of the review period, less increases already granted to eligible employees during the review period. The 1989 CBA required Boeing to increase the mean base salary of the bargaining unit by at least 2%, but individual salary increases were determined by recommendations from the employee's supervisor.
From August of 1989 through October of 1990, plaintiff worked in structural engineering under the supervision of Jim Hedden. Plaintiff was new to the area and Hedden regarded him as a trainee. One of the key elements of plaintiff's job was communication and, although Hedden regarded plaintiff as a competent performer, Hedden was concerned that plaintiff had a problem with both oral and written communications on account of his
Neither Roat nor Hedden made any promises to plaintiff concerning promotions or salary increases. In 1989, however, while plaintiff was working under Hedden, plaintiff's second level supervisor Charles Konkel encouraged plaintiff to continue his education and said that plaintiff would have potential growth and "grow up" with the company. In late 1988 or early 1989, Konkel even suggested the subject of paint removal for plaintiff's Masters' thesis and said it would pay off for him in the long term. Konkel did not make any specific promises, however, about plaintiff's future salary increases.
Plaintiff earned his Master's degree in December, 1989. Boeing did not require a Masters' degree for design engineers in plaintiff's area (the struts design area), however, and consistent with Boeing's policies and practices, plaintiff did not receive any change in engineering assignments or responsibilities on account of the fact that he had earned his Masters' degree.
Plaintiff worked under lead engineer Eric Fischer from October, 1990 until March, 1991. Fischer stated that plaintiff had done a "good job" on his first assignment. Plaintiff requested and thereafter received a job skill code change to DS4, design structures engineer.
On February 15, 1991, plaintiff transferred to a group under the supervision of David Martin. Martin testified that during the first year of supervision, he noted specific instances where plaintiff's performance was below average; after his training, plaintiff had a "learning curve" in using CATIA, a computer design tool; and some of plaintiff's work did not meet requirements and had to be redone.
From December, 1992 to December, 1995, plaintiff was a member of the collective bargaining unit that was represented by WEA Professional Lodge 2020, affiliated with District Lodge 70 of the International Association of Machinists and Aerospace Workers ("the union"). In the Collective Bargaining Agreement in effect from December 6, 1992 until December 5, 1995, (1992 CBA), Boeing agreed to set aside funds for salary increases for engineers in the amounts of 4%, 5% and 5% respectively for annual review periods ending in March, 1993, March, 1994 and March, 1995.
Following labor negotiations in 1989, Boeing began to look at new and improved ways of dealing with compensation questions for evaluating performance and how to pay for performance. The result of the effort was the Compensation/Pay for Performance system (C/PfP),
Prior to each selective salary adjustment or C/PfP exercise, during each of the relevant time periods, totem captains received specific instructions and guidelines on the conduct of the exercise. The totem captain provided instructions to line managers and facilitated the totem exercise, but line managers determined the actual performance rankings. Boeing reminds totem captains and supervisors of Boeing's nondiscrimination policies and instructs them that comparative performance evaluations must be based on objective assessment of job performance and achievement of assigned responsibilities.
In 1992, plaintiff returned to Huntsville to face an outstanding fugitive warrant. Plaintiff initially requested leave without pay, which Martin approved. This leave was later canceled because plaintiff and Boeing agreed to a temporary job assignment for plaintiff in Huntsville beginning May 3, 1992, thus allowing plaintiff to earn a salary while he dealt with the criminal case.
While plaintiff was in Huntsville, in June of 1992, Boeing conducted its initial C/PfP performance totem exercise for engineers. Plaintiff claims that some time prior to June 8, 1992, he spoke on the telephone with R.A. McKenzie, whose identity is not immediately evident on this record. According to plaintiff, McKenzie told plaintiff that he would have a "big increase to commensurate [sic] with [his] education and [his] experience," and that "[his] accomplishment will be award [sic] by [his] management in Wichita." According to plaintiff, McKenzie also told him that he was going to talk to someone in Wichita about the matter. Notwithstanding the conversation with McKenzie, plaintiff's absence did not have a positive effect on his performance ranking. On the "B" totem for June of 1992, he ranked 278 out of 289 engineers
After he returned from Huntsville in late August of 1992, plaintiff asked Martin about the status of his effort to put plaintiff into the software at a higher salary, see footnote 9, supra. Martin replied that he had not yet received an answer from upper management, but on December 6, 1992, the effective date of the 1992 CBA, plaintiff and other engineers received an automatic 2% increase. This increase brought plaintiff's annual salary to $36,450.00. At the end of 1992, Martin described plaintiff's work performance in Wichita as "satisfactory" — an average indicator meaning that plaintiff had no outstanding performance deficiencies; his performance was less than extraordinary, superior or exemplary, but better than unsatisfactory or below average. Martin also indicated that plaintiff needed to improve his understanding of Boeing's drawing revision system, improve his communications with his lead engineer and design build team members, and obtain a clear understanding of all requirements prior to and during design preparation.
On December 19, 1992, plaintiff earned his Ph.D. in mechanical engineering. Boeing paid all tuition, books and lab fees towards plaintiff's Ph.D., although an advanced degree was not necessary for plaintiff's job performance.
At about this same time, in recognition of the fact that plaintiff had earned his Ph.D., Martin recommended to Zeigler — at least orally — that plaintiff receive an out-of-sequence pay raise.
Also in December of 1992, at about this same time, plaintiff met with Robert Spitzer, Director of Engineering in Wichita, to discuss his situation at Boeing and the fact that he had earned his Masters' degree and his Ph.D. in mechanical engineering. Spitzer asked plaintiff to submit a letter stating "what did Joe Amro want to be." Plaintiff responded by sending his resume to Spitzer, along with a letter stating that he was "interested in an assignment as a principal engineer that will lead to a managerial position."
In January, 1993, the structural design work which plaintiff had been doing under Martin was largely complete. Therefore, on January 8, 1993, plaintiff moved to the 777 strut design area under Joe Kowing. Kowing participated in the C/PfP exercise that occurred prior to the March, 1993 salary adjustments. Plaintiff did not stand out in Kowing's group and Kowing did not perceive that plaintiff provided leadership. Plaintiff pretty much stuck to his computer screen, not interacting with or helping other engineers. Based on plaintiff's short time in the area, Kowing ranked plaintiff toward the bottom of the list in terms of performance and experience. The salary increase fund for the review period ending March, 1993 was 4%. Effective March 2, 1993, plaintiff received a merit increase of $1,550.00, or a 4.25% increase. Kowing had been plaintiff's supervisor for a short time, however, and this fact received positive consideration so that plaintiff would not be short-changed for being new to Kowing's group. Plaintiff nonetheless
On April 14, 1993, plaintiff had a work-related accident in a catwalk over South Oliver street and he required hospitalization in the intensive care unit. Thereafter, plaintiff had a problem with fatigue, and physical problems left him unable to walk without a stick. Plaintiff had 20 surgeries for a nose fracture, and he experienced cross vision after severe fatigue. As a result, plaintiff was on approved leave of absence for approximately five and one-half months, beginning April 15, 1993. On October 29, 1993, he returned to the struts and nacelles organization and worked briefly under Hedden's supervision. Plaintiff's medical restrictions did not have a serious impact on plaintiff's ability to do his job. Plaintiff had no problems with Hedden and Hedden accommodated plaintiff's restrictions.
Plaintiff met with Vopat again, in April of 1994. Vopat explained to plaintiff that his Ph.D. was not necessarily a big influencing factor in the way he performed or progressed as an engineer in defendant's system. Plaintiff claims that Vopat agreed to correct the record concerning plaintiff's "BS equivalent years" and to make sure that all of plaintiff's performance reviews and a copy of his Ph.D. degree were in his file. Vopat and Platz later checked the system and confirmed their view that it correctly reflected plaintiff's "BS equivalent years."
Beginning May 20, 1994, and for seven weeks thereafter, plaintiff worked in the fuselage structures design group under Terry Nunemaker. During that period, Nunemaker gave plaintiff special assignments that did not require him to use a CATIA screen for extended periods of time, and he essentially created a special position, which did not normally exist, for plaintiff. Nunemaker never refused to give plaintiff time off and he did not do anything which plaintiff considered to be unfair or discriminatory with respect to time off. On June 29, 1994, Nunemaker approved a second leave of absence for plaintiff, beginning July 1, 1994. Nunemaker did not supervise plaintiff long enough to make a judgment about his performance. Moreover, because Boeing did not conduct a merit exercise while Nunemaker was his supervisor, Nunemaker did not participate in a performance or merit totem involving plaintiff. He did give plaintiff a year-end performance evaluation which stated that plaintiff was doing a "good job" but raised concerns that plaintiff's "ability to meet program goals was severely affected by [his] physical disability which resulted in an extended medical leave of absence."
In November, 1994, plaintiff was released to return to work from his second leave of absence, with the following permanent medical restrictions:
In addition, one of plaintiff's physicians stated that plaintiff would need a break from computer work every 30 minutes.
When plaintiff returned from his second leave of absence, the special assignment and other work that plaintiff had performed under Nunemaker was complete. Also, about 80% of the work in Nunemaker's design group involved computer use; engineers had to work for extended periods on computers to define an airplane, to create a data set of drawings that are done on a CAD or CATIA screen. As a result, plaintiff could not return to work for Nunemaker.
Since April, 1995, Randy Henley has supervised plaintiff in the liaison engineering group. Initially, Henley noted areas that plaintiff had to improve; in particular, he noted that "[s]ometimes the communication of the design issues ... would get muddled." Henley worked with plaintiff on improving communications within the team environment and with other functional organizations and customers, however, and his performance improved. The manufacturing engineering group (an internal customer of Henley's liaison group) had particular problems with plaintiff, and Henley's view was that "the apparent friction or communication issue" was an impediment to plaintiff's ability to perform as an engineer. At the time of plaintiff's performance evaluation in March of 1995, plaintiff ranked 169 out of 203 engineers in his skill code. He received a $1,000.00 salary increase.
At the time of the performance evaluation in March of 1996, plaintiff ranked 279 out of 327 engineers and he received a $1,500 salary increase (bringing his annual salary to $40,500.00). Effective December 6, 1995, the bargaining unit became subject to a new collective bargaining agreement between Boeing and the Seattle Professional Engineering Employees Association (1995 CBA) which will be in effect until December 5, 1999. The 1995 CBA sets out yearly salary adjustment review periods and increase percentages of 4.0%, 4.0%, 4.5% and 5.0% for the years from 1996 through 1999. Plaintiff's raise in 1996 amounted to a 3.84% increase, close to the CBA's increase fund percentage of 4.0%.
Plaintiff complains that in the 1992 C/PfP exercise, Boeing established "no criteria" for managers to follow in evaluating performance. This allegation — which plaintiff reiterates for all toteming procedures up to 1994, is unsupported by the record.
Boeing codified these guidelines in the performance assessment instructions in late 1994 (see Deposition Exhibit 87). At that time, in preparation for the 1995 C/PfP exercise, Boeing distributed to both engineers and management a set of written guidelines on performance assessment, for the stated purpose of helping focus the totem meeting discussions on five key elements of "performance" and also helping to stimulate meaningful dialogue between engineers and management in the one-on-one meetings that occurred after the totem exercise. The guidelines broadly defined "performance" to include five elements, all of which related to an employee's "value to the company": accumulation of responsibility, accumulation of skills, leadership, quality and quantity of work, and attitude. Even given this codification in 1994, however, the record belies plaintiff's contention that prior to 1994, performance criteria "varied from manager to manager" or were non-existent.
No part of Boeing's evaluation process has expressly recognized educational attainment as a criteria of work performance. Neither the SELA process nor the C/PfP process directly recognized attainment of advanced degrees, and an employee's attainment of an advanced degree does not result in salary adjustments or raises or, standing alone, influence an engineer's performance or career progress at Boeing.
Today, plaintiff has no trouble walking. He has lower back pain after sitting "a while." He still has problem with fatigue "on and off." "Off and on," plaintiff has had pain in both sides of his nose and sinuses around his eyes; it has been months, however, since plaintiff had severe pain. Plaintiff had cross vision four or five weeks prior to his deposition and uses breathing, biofeedback and relaxation techniques to resolve these problems. He also experiences dryness in his eyes which he treats with over-the-counter medication. Plaintiff never told Prohaska that he felt Boeing was discriminating against him because of his medical impairments or national origin, or retaliating against him. As far as Prohaska knows, plaintiff was successfully accommodated in the position with Tiffany, and plaintiff's placement there was not retaliatory. Plaintiff now complains, however, that although his current position is a Design and Structures Engineer with a DS4 skill code, Boeing "demoted" him to the position of drafter in December, 1994 and he now receives only low-level drafting assignments and responsibility for which no degree is required. The record contains no evidence of any formal demotion, and plaintiff admits that he is paid and classified as a Grade 12 engineer. Moreover, plaintiff's affidavit acknowledges that some of his duties are ones which might be assigned to an engineer.
Plaintiff filed a grievance under the collective bargaining agreement, alleging that he had been required to make up time lost for doctor's appointments. Plaintiff received pay for a certain number of those hours, but claims that the issue is still up in the air.
Plaintiff claims that in March of 1994, he delivered a letter to Kim Scanlan, Boeing's Director of Internal Equal Employment Opportunity/Workforce Diversity, complaining of discrimination. He cites no record evidence in support of that claim, however, and he does not provide a copy of any alleged letter. Boeing has no record that plaintiff in fact sent such a letter, and Scanlan denies that she received it. Plaintiff in any case received no response, and he therefore filed a complaint with the Kansas Human Rights Commission on May 12, 1994, alleging that he was denied a wage increase on March 21, 1994 and a promotion on April 10, 1994 because of his disability and national origin.
Plaintiff also sent letters dated May 20, 1994, to Boeing's EEO offices in Wichita and Seattle.
On October 6, 1995, plaintiff filed a charge of retaliation with the Kansas Human Rights Commission, alleging that:
Plaintiff filed the instant lawsuit on March 29, 1996.
STATEMENT OF ISSUES PRESENTED
Boeing claims that it is entitled to summary judgment on the following issues:
1. Whether plaintiff's claim under 42 U.S.C. § 1981 is barred by the statute of limitations or because plaintiff fails to present a genuine issue of material fact as to each element of that claim.
2. Whether plaintiff's Title VII national origin discrimination claim is barred by plaintiff's failure to exhaust administrative remedies or his inability to present a genuine
3. Whether plaintiff's disability discrimination claim is barred by his failure to exhaust administrative remedies or his inability to present a genuine issue of material fact as to each element of that claim.
4. Whether plaintiff's Title VII retaliation claim is barred by his failure to exhaust administrative remedies or his inability to present a genuine issue of material fact as to each element of that claim.
I. PLAINTIFF'S CLAIM OF NATIONAL ORIGIN DISCRIMINATION IN VIOLATION OF 42 U.S.C. § 1981
A. Statute Of Limitations
The statute of limitations for an action under 42 U.S.C. § 1981 is two years. Garcia v. University of Kansas, 702 F.2d 849, 851 (10th Cir.1983). Defendant claims that because plaintiff filed suit on March 29, 1996, only those claims which accrued on or after March 29, 1994 are actionable. Plaintiff disagrees, arguing without pertinent authority that the statute of limitations under Section 1981 is tolled under a "continuing violation" theory. Plaintiff claims that under this theory he is entitled to relief under Section 1981 not only for his alleged "demotion" in December of 1994 and the low performance ranking in 1995, but also for his failure to receive appropriate evaluations, raises and promotions from the beginning of 1991 through March of 1994. The Court disagrees.
Plaintiff may not use the continuing violation theory to challenge discrete actions that occurred outside the limitations period even though the impact of the acts continues to be felt. Pike v. City of Mission, Kansas, 731 F.2d 655, 660 (10th Cir.1984). Each of the discriminatory acts alleged in this case was a discrete act, and any cause of action on account thereof arose when the act occurred and was communicated to plaintiff. Ulibarri v. Lopez, 99 F.3d 1151, 1996 WL 594281, *2 (10th Cir.1996), citing Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980). The continuing violation theory is premised upon the equitable notion that the statute of limitations should not begin to run until a reasonable person would be aware that his or her rights have been violated. See Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1415 at n. 6 (10th Cir.1993). Even if the doctrine — which developed under Title VII and analogous discrimination statutes — applied in this case, plaintiff cannot rely on it to overcome the statute of limitations. He clearly would have been contemporaneously aware, as events unfolded, that the foregoing acts of discrimination had occurred and that his rights had been thereby violated. As a matter of law, all of his Section 1981 claims which accrued before March 29, 1994 are therefore barred.
Plaintiff's surviving claims are his claims that Boeing discriminated against him on account of his national origin in (1) demoting him to drafter in December of 1994; and (2) ranking him 23 out of 25 engineers on the "A" totem of DS4 engineers in the performance exercise for March, 1995.
B. Plaintiff's § 1981 National Origin Claims
As noted above, for the period beginning March 29, 1994 and thereafter, plaintiff
Plaintiff complains that Boeing "demoted" him in December of 1994. The undisputed facts are that Boeing created a job especially to meet plaintiff's medical restrictions when he returned from his first medical leave of leave of absence on October 29, 1993; that plaintiff went on a second medical leave of absence from July 1 to December 22, 1994; and that in the meantime, the work assigned to the position created especially for plaintiff had been accomplished. The record also establishes that plaintiff was "very anxious" to get back to work and that Boeing assigned him to drafting work in Tiffany's group (with no loss of grade or salary) because of concerns that plaintiff's cognitive ability had been impaired in his accident and because that job opening "materialized the quickest." Because plaintiff was not in an existing position at the time of the alleged discrimination, however, his "demotion" claim is actually more analogous to one for discriminatory refusal to hire.
In the context of employment discrimination cases analyzed pursuant to the McDonnell Douglas framework, plaintiff must first establish a prima facie case of discrimination. Generally, this framework requires that plaintiff prove that: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for an available position; (3) the plaintiff was rejected despite being qualified; and (4) the position remained open as the employer continued to search for applications or the position was filled by a person not within the protected class. Once plaintiff establishes a prima facie case, the employer must offer a facially nondiscriminatory reason for its employment decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1316-19 (10th Cir.1992). At the summary judgment stage, it then becomes plaintiff's burden to show that there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual — i.e. unworthy of belief. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995); Ingels v. Thiokol Corp., 42 F.3d 616, 622 (10th Cir.1994). If plaintiff succeeds in showing a prima facie case and presents evidence that defendant's proffered reason for the employment decision was unworthy of belief, plaintiff can withstand a summary judgment motion and is entitled to go to trial. Id.
Plaintiff fails to make a prima facie case under this test. First, plaintiff has not demonstrated that any more appropriate positions were available when he returned to work on December 22, 1994. He cites no evidence that the position with Nunemaker either remained open or was filled by someone outside a protected class. Plaintiff claims that Tiffany had two senior engineering positions available within his group, but he has introduced no evidence that either of them was vacant on December 22, 1994, that either position was consistent with his medical restrictions, or that either position was filled by someone outside a protected class.
For these reasons, plaintiff has not established a prima facie case of national origin discrimination based upon his job assignment when he returned from his medical leave of absence on December 22, 1994.
2. Plaintiff's ranking of 23 out of 25 engineers on the "A" totem in March, 1995
By the time of the performance rankings in March, 1995, plaintiff was assigned to Randy Henley in a liaison engineering group. Henley perceived that plaintiff needed to improve
Boeing claims that the issue concerning plaintiff's national origin discrimination claim is not whether plaintiff was compensated in the way he deserved to be, or even in the way others thought he deserved to be, but whether Boeing compensated him in a way that was different than those who performed as he did, but who were not Lebanese. Boeing claims that in order to meet this burden, plaintiff must prove that his performance was better than each of those engineers ranked above him and that the rank assigned him was because he was Lebanese, citing Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th Cir.1992), and Rea v. Martin Marietta Corp., 29 F.3d 1450, 1456 (10th Cir.1994). Boeing alleges that plaintiff "simply does not have the evidence to do this" and that summary judgment must therefore be granted.
Plaintiff's precise claim is that his performance rating in 1995 did not "accurately reflect the plaintiff's performance and/or value to the defendant relative to similarly situated DS-4 engineers," and that as a result, plaintiff did not receive a salary raise commensurate with his performance, training, education and skill. This claim is difficult to address because (1) the Court has no idea how Boeing's engineering workforce was demographically constituted during the relevant time period;
Under the McDonnell Douglas framework, plaintiff must establish a prima facie case of discrimination. Generally, in this context, this framework requires that plaintiff prove that: (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for a certain performance ranking or raise; (3) plaintiff did not receive the rankings and raises for which he was qualified; and (4) plaintiff was treated less favorably than similarly situated persons outside the protected class. On this record, plaintiff has not discharged that burden. Plaintiff's failure to specifically identify any members of the so-called "similarly situated group" of DS4 engineers is fatal to his case. Without such information, either statistically or in another form, the Court is confronted with plaintiff's naked complaint, based on his purely personal opinion, that but for his national origin, Boeing would have more richly rewarded him.
The Court recognizes that in order to make a prima facie case, plaintiff need not prove that he was entitled to be placed at the very top of Boeing's list, Rich v. Martin Marietta Corp., 522 F.2d 333, 347 (10th Cir. 1975), and that because Boeing's evaluation process was largely subjective, it "would have the burden of establishing the fundamental fairness" of its process, Id. at 348.
II. PLAINTIFF'S ADA AND TITLE VII DISCRIMINATION CLAIMS
On May 12, 1994, plaintiff filed a charge of discrimination with the Kansas Human Rights Commission, alleging that Boeing denied him a wage increase on March 21, 1994, and a promotion on April 10, 1994, on account of his disability (a head injury which substantially limited his memory and altered his vision) and his national origin. Boeing claims that plaintiff failed to exhaust his administrative remedies for disability or national origin discrimination except as set forth in this charge of discrimination, and seeks summary judgment on plaintiff's remaining disability and national origin discrimination claims under the ADA and Title VII, respectively.
Plaintiff wants to expand the scope of the 1994 charge — insofar as it respects his ADA claim only — to include a complaint concerning Boeing's administration of its medical leave policies and his "demotion" which occurred seven and one-half months later, on December 22, 1994.
In seeking to avoid summary judgment on this issue, plaintiff cites no record evidence
To bring a cause of action under the ADA, an employee must file a discrimination charge with the state agency within 300 days after the alleged discriminatory act occurred. 42 U.S.C. § 2000e-5(e). An aggrieved employee may not maintain a suit in federal court unless the employee has "pursued [these] avenues of potential administrative relief." Love v. Pullman Co., 404 U.S. 522, 523, 92 S.Ct. 616, 617, 30 L.Ed.2d 679 (1972). An exception to the administrative exhaustion rule is "that acts committed pursuant to a pattern of discrimination challenged in an [Equal Employment Opportunity Commission] complaint, but occurring after its filing, [if] reasonably related to that complaint, ... may be challenged in district court without filing another [Equal Employment Opportunity Commission] complaint." Brown v. Hartshorne Public School Dist. No. 1, 864 F.2d 680, 682 (10th Cir.1988); Archuleta v. Colorado Dept. of Institutions, 936 F.2d 483, 488 (10th Cir.1991).
In this case, the Court finds that Boeing's decision to "demote" plaintiff in December of 1994 was not "reasonably related to" the acts of discrimination alleged in plaintiff's administrative complaint filed on May 12, 1994. In part, the administrative charge related to the fact that on March 21, 1994, Boeing had denied plaintiff a wage increase, allegedly on account of his disability. Of course the undisputed fact in this case is that under the collective bargaining agreement then in effect, plaintiff was not eligible for a raise in March of 1994 because he had been on a leave of absence for more than 90 days in the evaluation period. Whether Boeing violated plaintiff's rights under the ADA, in applying this policy, is an issue very distinctly separate and apart from any claim that Boeing "demoted" plaintiff eight months later, on December 22, 1994.
B. Plaintiff's Title VII National Origin Claim
In the pretrial order, plaintiff does not distinguish the national origin claims which he brings under 42 U.S.C. § 1981 from those which he brings under Title VII. Plaintiff has exhausted his administrative remedies only as to two claims, however, and he does not argue that the administrative charge which he filed on May 12, 1994 should be broadly construed to include other claims. We therefore consider only the two claims advanced in the administrative charge. We mention them only briefly, for they are fatally flawed from the outset.
Plaintiff's first claim is that on account of his national origin, Boeing denied plaintiff a wage increase on March 21, 1994, although others in his position with less education and experience were being paid more than he was. Again, the undisputed fact in this case is that plaintiff was not eligible for a raise in 1994 because he had been on a leave of absence for more than 90 days in the evaluation period, and the collective bargaining agreement rendered him ineligible to participate in the performance evaluation process.
Plaintiff's second claim is that Boeing discriminated against him on the basis of national origin by refusing to promote him on April 10, 1994. The pretrial order makes no such claim and the record reveals no evidence to support it. Again, plaintiff has apparently abandoned this claim and we need not consider it further.
C. Plaintiff's Disability Discrimination Claim
Plaintiff has exhausted his administrative remedies as to only two claims for disability discrimination. We therefore consider only those claims advanced in the administrative charge. We mention them only briefly, for like those advanced above with respect to plaintiff's national origin claims, they are fatally flawed from the outset.
Plaintiff's first claim is that on account of his disability, Boeing denied plaintiff a wage increase on March 21, 1994, although others in his position with less education and experience were being paid more than he was. Again, the undisputed fact in this case is that plaintiff was not eligible for a raise in 1994 because he had been on a leave of absence for more than 90 days in the evaluation period, and the collective bargaining agreement rendered him ineligible to participate in the performance evaluation process.
Plaintiff's second claim is that Boeing discriminated against him on the basis of disability by refusing to promote him on April 10, 1994. The pretrial order makes no such claim, however, and the record reveals no evidence to support it. Again, plaintiff has apparently abandoned this claim and we need not consider it further.
In opposing defendant's motion for summary judgment, plaintiff speaks only of the fact that Boeing "demoted" him on account of his disability. That claim, for reasons previously stated, is not properly before us.
III. PLAINTIFF'S RETALIATION CLAIMS
A. Exhaustion of Administrative Remedies
On October 6, 1995, plaintiff filed a second charge of discrimination, alleging retaliation. Specifically, he complained that on December 23, 1994, continuing through March 15, 1995, Boeing told him that he would have to work in the drafting department for three to six months, and excluded him from the engineering department. He also charged that on April 12, 1995, his supervisor requested that he be reassigned to a job commensurate with his education and experience, but that Boeing denied the request. Plaintiff claimed that in both respects, Boeing was retaliating for the fact that he had previously filed a complaint of discrimination. He did not
Plaintiff apparently believes that the scope of the administrative charge should be expanded, because in his opposition to defendant's motion for summary judgment, he argues that his claim "that the December 1993 to July 1994 Performance Review is retaliatory must survive the defendant's motion for summary judgment." For purposes of this motion, the Court assumes that this claim of retaliation is reasonably related to the retaliation claims advanced in plaintiff's administrative charge, and address it on the merits.
B. Plaintiff's Retaliation Claim
For purposes of this motion, the Court construes plaintiff's retaliation claim to be that because he filed a charge of discrimination on May 12, 1994: (1) Boeing "demoted" plaintiff to a drafting position and excluded him from his prior engineering job beginning December 22, 1994; (2) on January 9, 1995, Boeing gave him an unfair performance review for the period from December, 1993 to July, 1994; and (3) Boeing ranked plaintiff in the lower 25th percentile on the totems generated in March of 1995 and March of 1996.
To state a prima facie case of Title VII retaliation, plaintiff must demonstrate that: (1) he engaged in a protected activity; (2) that an adverse employment action occurred subsequent to or contemporaneous with that activity; and (3) that there is a causal connection between the protected activity and the adverse employment action. See Conner v. Schnuck Markets, Inc., 906 F.Supp. 606, 611 (D.Kan.1995), and cases cited therein. If plaintiff does so, defendant is then obligated to explain a legitimate reason for the employment action taken. Once an acceptable explanation is given, plaintiff must offer some evidence that this reason is merely a pretext for discrimination or he will not survive summary judgment. Id. at 613. Conclusory allegations will not prevent the court from granting summary judgment. Id. at 614.
1. Demotion and Reassignment on December 22, 1994
Plaintiff claims that Boeing changed his job duties from engineering to drafting in late December, 1994, because had he filed a KHRC complaint in May, 1994. Boeing claims that it is entitled to summary judgment on this claim because plaintiff cannot prove a link between his transfer and his protected activity. Plaintiff argues that Susan Amos sent an e-mail to Bob Ream, Boeing's human resources manager, notifying him that plaintiff had filed a charge of discrimination; that on May 24, 1994, Boeing distributed a memo warning managers not to retaliate against plaintiff; and that "immediately" thereafter, Ream decided that plaintiff could not return to his position in Nunemaker's group. This argument falls of its own weight for several reasons. First, and most importantly, no such evidence has been presented in compliance with D.Kan.Rule 56.1 or the scheduling order in this case. Bob Ream's name appears nowhere in the facts which the Court has found to be undisputed. Moreover, even according to the deposition testimony cited by plaintiff, Ream did not receive the e-mail from Amos until 1996 — as much as two years after he allegedly exiled plaintiff from the engineering department. Indeed, the record suggests that Prohaska, Tiffany, and plaintiff himself — and not Ream — decided to reassign plaintiff. Plaintiff has not through record evidence demonstrated a triable issue of fact (1) that Ream knew about plaintiff's protected activity in December, 1994; or (2) that Ream even made a decision to exile plaintiff from the engineering department. Without such proof, a jury could not reasonably infer that
Plaintiff also claims that "immediately" after Boeing distributed the May 24, 1994 memo warning managers not to retaliate against plaintiff, Tiffany demoted him to the position of drafter.
2. January, 1995 Performance Review
Plaintiff claims that on January 9, 1995, Nunemaker signed an adverse performance review for the period from December, 1993 to July, 1994. As evidence of its retaliatory purpose, plaintiff contends that it occurred shortly after interviews by Mark Mason (the Court has no idea what this reference concerns; the record evidence make no reference to any such interviews) and circulation of the May 24, 1994 memo warning managers not to retaliate against plaintiff. Plaintiff argues that "Nunemaker was part of management and would under normal circumstances" have been informed that plaintiff had filed a charge of discrimination in May of 1994. Plaintiff cites no evidence concerning what Boeing's "normal" communication channels were, however, and the record is devoid of evidence that Nunemaker had actual knowledge of any protected activity by plaintiff. Without that crucial proof, plaintiff cannot establish a fact question about whether Nunemaker's assessment of plaintiff and plaintiff's protected activity are related.
3. 1995 and 1996 Totem Rankings
Plaintiff claims that the totem ranking which he received on March 2, 1995 and the totem ranking which he received on March 2, 1996, were retaliatory because they occurred after he filed his complaint of discrimination on May 12, 1994.
Boeing argues that Henley participated in the totem exercises for both 1995 and 1996; that the record contains no evidence that Henley knew of plaintiff's administrative complaint when he participated in those exercises; and that without such evidence, plaintiff cannot establish a prima facie case of retaliation. Plaintiff does not dispute this point and the Court finds that Boeing is entitled to summary judgment on this point.
For all of the foregoing reasons, Boeing has demonstrated that it is entitled to summary judgment in this case. On these facts, a jury could not reasonably resolve any of plaintiff's claims in his favor.
Affidavit of Joseph P. Amro In Opposition To Defendant's Motion For Summary Judgment (Doc. # 87) filed December 9, 1996 at 6, ¶ 10(h).
Likewise, the Court cannot discern any relevance to plaintiff's observation that in the fall 1992, the toteming process was changed so that an individual's ratings were not changed from the previous exercise unless the managers and supervisors specifically changed the rating; or the purported fact that these changes allowed managers to base peer ratings on head-to-head comparisons (i.e. "who deserves the higher target salary?") or on judgments regarding who is the higher percentile performer.
Performance Category Average IncreaseSuperior 2.6% Good 2.0% Satisfactory 1.2%
Plaintiff, Prohaska and Tiffany approved a rehabilitation plan as part of plaintiff's workers' compensation claim. As far as Prohaska knew, plaintiff's return to work was successful. She made the decision to place plaintiff in Tiffany's position because it met plaintiff's qualifications and it was the first available opening in a senior engineering position that met plaintiff's medical restrictions.
Plaintiff complains that no one "told" him that his restrictions prevented him from returning to Nunemaker's group. In this regard, however, he relies upon deposition testimony that he does not include in the record.
Plaintiff complains that in the past, Nunemaker had not assigned him CATIA work. Again, however, he relies upon deposition testimony that he does not include in the record.
Plaintiff complains that engineers who were not CATIA-capable worked for Nunemaker. The record does in fact reflect that as of October 15, 1996, Nunemaker supervised three engineers who were not building or releasing CATIA data set drawings. Deposition of Terry V. Nunemaker (October 15, 1996) at 12, as corrected per Attachment 23, Supplemental Attachments To Defendant Boeing's Reply Memorandum In Support Of Motion For Summary Judgment (Doc. # 107) filed December 23, 1996. The relevant time period is December, 1994, however, and not October, 1996.
Plaintiff cites hearsay statements by Prohaska, concerning what Zeigler allegedly told her. Again plaintiff fails to document such testimony with evidence in the record.
Plaintiff complains that Boeing returned him to work not in a senior engineering position but as a drafter. In fact, however, the record reveals that plaintiff retained his Grade 12 salary and remained within the design engineer skill code. Initially, Tiffany was concerned that plaintiff had lost some cognitive ability as a result of his accident; he therefore assigned plaintiff drafting work as opposed to engineering work. Under Tiffany, several drafters worked for one engineer, who reviewed and signed off on production changes. Deposition of Floyd Tiffany (October 18, 1996) at 25-26. Whether that assignment persisted and if so, for how long, is not evident from the record.
Plaintiff finally complains that Boeing assigned him to a drafting position without even considering him for other positions that were available within his medical restrictions, i.e. his former position with Nunemaker and two senior level engineering positions that were not essentially drafting jobs. The record contains no evidence, however, that in November of 1994, when plaintiff returned from his second leave of absence, Nunemaker had an available position which was compatible with plaintiff's medical restrictions, i.e. "use of computer screen not greater than 50% of shift" and a break from the computer screen every 30 minutes. To the contrary, the record reveals that plaintiff's position with Nunemaker had been one created especially for him and that the work assigned that position had been accomplished. The record likewise contains no evidence that Boeing actually had two senior engineering positions which were available in December of 1994, within plaintiff's medical restrictions. To the contrary, the evidence is that plaintiff was "very anxious" to get back to work and that Boeing placed him in the position with Tiffany because it met plaintiff's professional qualifications, satisfied plaintiff's medical restrictions, and "materialized the quickest."
In addition, in the collective bargaining agreement, Boeing and the union agreed that relevant performance criteria included (but were not limited to) customer satisfaction, continuous quality improvement, initiative, productivity, overall technical competence, communication, teamwork, innovation, creativity, integrity and leadership. Id. at 47.
As further evidence of the arbitrariness of the toteming process, plaintiff complains that Nunemaker did not participate in the 1994 toteming process for plaintiff "even though he was his line manager." Technically, Boeing assigned plaintiff to Nunemaker for seven months in 1994. Nunemaker only observed plaintiff for seven weeks, however, from May 20 to July 1, 1994, because plaintiff was on his second leave of absence from July 1 to December 22, 1994. Deposition of Terry V. Nunemaker (October 15, 1996) at 7-9. Nunemaker did not participate in the 1994 toteming process for plaintiff because the toteming process did not occur while plaintiff was under his supervision.