Amro v. Boeing Co.
| Decision Date | 23 July 1999 |
| Docket Number | No. Civ.A. 98-2257-KHV.,Civ.A. 98-2257-KHV. |
| Citation | 65 F.Supp.2d 1170 |
| Parties | Joseph P. AMRO, Plaintiff, v. The BOEING COMPANY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Bobbie R. Bailey, Kansas City, MO, for plaintiff.
J. Steven Massoni, Mikel L. Stout, Gaye B. Tibbets, Willaim M. Anderson, Foulston & Siefkin, L.L.P., Wichita, KS, for defendant.
Joseph P. Amro, a senior engineer currently employed by The Boeing Company, brings suit for race, color and national origin discrimination and retaliation in violation of 42 U.S.C. § 2000e (Title VII) and 42 U.S.C. § 1981, and disability discrimination in violation of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. # 66) filed May 13, 1999. For the reasons set forth below, the Court finds that defendant's motion should be sustained.
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, 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. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.
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, 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 Sec., 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, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., 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.
In ruling on summary judgment, the Court will disregard conclusory statements and statements not based on personal knowledge. Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1382 (10th Cir.1994) (regarding conclusory statements); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995) (requiring personal knowledge).
"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.
The facts set forth below are viewed in the light most favorable to plaintiff.
Plaintiff Joseph P. Amro, a male of Lebanese national origin and middle-eastern ancestry, is a naturalized United States citizen. Since December 1984, he has worked at Boeing. Although he completed an information card which stated that his race is White, Boeing has classified plaintiff as an Hispanic and an Asian or Southeast Asian.1
In a prior lawsuit, this Court granted Boeing's motion for summary judgment because plaintiff failed to produce evidence that in or before March 1996, Boeing discriminated against him on the basis of national origin or disability with regard to compensation and job assignments. See Amro v. Boeing Co., 951 F.Supp. 1533, 1540-43, 1550-52 (D.Kan.1997), aff'd, 1998 WL 380510, 153 F.3d 726 (10th Cir.1998) (table) [Amro I]. Plaintiff filed this lawsuit on June 10, 1998, alleging employment discrimination based on events occurring after March, 1996.
From November 1994 until November 1997, Boeing classified plaintiff as a Senior Engineer in the Liaison Engineering department. Randy Henley was plaintiff's direct supervisor and Kevin Smith was his "lead." Frank Vopat, as People Support Manager, was responsible for supporting the product definition organization in the Wichita Boeing commercial division. Bob Ream was plaintiff's personnel representative.
In the employee comment section of his 1996 Performance Management document, plaintiff wrote that Att. 2, Depo.Ex. 65, Amro 5435.
On March 19, 1997, Boeing notified plaintiff that his ranking on Boeing's "B-Totem" was 313 out of 383, placing him in the bottom 20 percent of DS-4 skill code engineers.2 For 1997, Boeing gave plaintiff a merit increase of $1,700. Plaintiff told Henley that he was unhappy with his retention rating and raise.3
On April 4, 1997, plaintiff met with Henley and his second level manager, Jerry Kreutzer. Plaintiff expressed his view that based on actual performance, he was ranked far below where he should have been ranked. He also complained that he was not being paid the same amount as similarly situated DS-4 engineers who had comparable skills, experience, training and performance. Plaintiff told Henley and Kreutzer that he felt that he was being singled out and ranked unfairly because he had filed charges of discrimination and retaliation against Boeing. Kreutzer told plaintiff that his rankings were low because he was in an "entry-level drafting position" (Amro Aff., pp. 10-11), that his medical restrictions were hampering his career at Boeing, and that Boeing would not transfer him from a Grade 12 to Grade 14 because of his medical restrictions.4 Kreutzer compared plaintiff's medical restrictions to a "ball and chain" on plaintiff's leg and told him that until his restrictions were removed, nothing (including merit increases, retention ratings and his B-totem ranking) would change.5 In response, plaintiff agreed to tell Henley and Kreutzer if he found a position to which he wanted to transfer.
Plaintiff testified that at one point during the meeting, Henley took a paper that contained the medical restrictions, slammed it on the table and told plaintiff:
God damn it. That is your problem because you have so many [medical] restriction[s] at Boeing. If you remove your restriction[s] your retention will be changed, you B-totem will be changed and your salary will be changed. So, you tied up your restriction[s].
(Amro Depo., p. 106). Henley "storm[ed]" out of the meeting and Kreutzer told plaintiff: "God damn it, jackass, you're lucky you have a job because we have a lot of work down here." (Amro Depo., p. 108). Immediately after the meeting Henley stopped plaintiff as he headed back to his station and in an angry voice said "[Y]ou fucking foreigner, you're lucky to have a job." (Amro Aff., ¶ 34).6 Henley then grabbed plaintiff, started going through plaintiff's jacket pockets, and attempted to search him, asking "Do you have a tape recorder?" Id. Plaintiff "literally ran" to an area with other people so that Henley could not attack him again. Id. Shortly after that incident Henley threw drawings at plaintiff and caused a paper cut to his neck. On another occasion when plaintiff was returning a drawing, Henley physically pushed plaintiff with both hands, yelling "God dammit fix this drawing." (Amro Aff., ¶ 35). Other employees observed Henley angrily shove or throw papers at plaintiff.
On April 14, 1997, plaintiff filed a grievance concerning his April 4, 1997, meeting with Henley and Kreutzer. Plaintiff alleged that Boeing had not fairly considered him for merit increases, B-totems and retention levels. Plaintiff complained that his managers had previously led him to believe that he was in a Senior Engineer position which was appropriate for a DS-4 engineer, but that they now were telling him that he was in an entry level position that resulted in low retention ratings and low merit increases. Plaintiff also asserted in his grievance that his managers told him that the only way to improve his ratings and salary would be to transfer out of his current position.7 Plaintiff filed the grievance because he felt that his performance management reviews "ha[d] always reflected that [his] performance is above average, but [his] salary increases indicate that [he] was a below average performer" and that even his supervisors acknowledged that his performance for Henley was outstanding. (Amro Aff., ¶ 37).
Before filing his grievance, plaintiff had verbally requested a transfer from Henley's group.8 Plaintiff also expressed his desire to transfer in performance management reviews. Plaintiff's grievance, however, complained that Henley "appears to be unwilling to work with employee, and appears to be wanting to hand-off employee to another group." (Plaintiff Att. 1, Ex. M, p. 2).
A grievance meeting occurred on May 7, 1997. As a result of that meeting, at management's suggestion, plaintiff and his union representative (Doug Ritter) agreed to document plaintiff's career path goal by filling out a Career Transfer Request (CTR). Plaintiff submitted the CTR to Bob Ream, Boeing's personnel...
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