AMRO v. The Boeing Co.
| Decision Date | 14 November 2000 |
| Docket Number | No. 99-3281,99-3281 |
| Citation | 232 F.3d 790 |
| Parties | (10th Cir. 2000) JOSEPH P. AMRO, Plaintiff - Appellant, v. THE BOEING COMPANY, Defendant - Appellee |
| Court | U.S. Court of Appeals — Tenth Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. NO. CV-98-2257-KHV)
[Copyrighted Material Omitted] Albert F. Kuhl, Law Offices of Albert F. Kuhl, Lenexa, Kansas (Bobbie R. Bailey, The Bailey Law Firm, Kansas City, Missouri, with him on the briefs), for Appellant.
Timothy B. Mustaine, Foulston & Siefkin, L.L.P., Wichita, Kansas, for Appellee.
Before KELLY, ANDERSON, and HENRY, Circuit Judges.
Joseph Amro, who is of Lebanese ancestry, brought this action against his employer, The Boeing Company, alleging discrimination and retaliation in violation of Title VII and 42 U.S.C. 1981 in connection with the denial of various employment opportunities. The district court granted summary judgment to Boeing. Mr. Amro appeals and we affirm.
Mr. Amro, who is an engineer, was hired by Boeing in 1984. By 1999, he was a senior engineer, Grade 12, DS-4 Skill Code. In April 1993, Mr. Amro was seriously injured in a workplace accident which left him with various physical impairments, including vision problems which made it difficult for him to focus on the CATIA computer screen he used on the job.1 The accident resulted in various permanent medical restrictions on his work environment.
In March 1996, Mr. Amro sued Boeing, alleging that Boeing had discriminated against him for years because of his Lebanese ancestry, race, color and disability. The district court granted summary judgment to Boeing, and this court affirmed. Amro v. Boeing Co., 951 F. Supp. 1533 (D. Kan. 1997), aff'd, No. 97-3049, 1998 WL 380510 (10th Cir. July 8, 1998) (unpublished) (Amro I). Of particular relevance to this action, the district court in Amro I held that Mr. Amro failed to establish a prima facie case of discrimination with respect to Mr. Amro's ranking among his fellow engineers. The present lawsuit involves incidents occurring after March 1996.
Since 1989, professional engineers at the Boeing Wichita plant where Mr. Amro worked have been subject to a series of collective bargaining agreements. The Collective Bargaining Agreement ("CBA") in effect at the time relevant to this lawsuit was between Boeing and the Seattle Professional Engineering Employees' Association ("SPEEA"). The district court described its operation as follows:
It provides that on an annual basis, Boeing will selectively increase the salaries of eligible employees in the bargaining unit. For each year's salary exercise, Boeing establishes a fund by multiplying the sum of the eligible employees' salaries by a percentage set forth in the CBA. The CBA set those percentages at 4.0 percent for 1997, 4.5 percent for 1998, and 5.0 percent for 1999.
Amro v. Boeing Co., 65 F. Supp. 2d 1170, 1178 (D. Kan. 1999). Boeing determined which individual engineers received raises and determined the amount of those raises. The district court described that process as follows:
Eligibility depends on the employee's placement on Boeing's final salary totems. Salary totems are compiled through the salary adjustment process, numerous meetings of working level supervisors and managers, and meetings of the larger totem committee. As part of the process Boeing breaks the large group of DS-4 engineers into smaller "peer" groups which are composed of engineers who have similar experiences, acquired skills, capabilities and B.S. Equivalent years. B.S. Equivalent years are generally defined as the number of years of engineering-related experience which the employee has acquired since receiving a B.S. degree.
Id. Within each particular peer group, Boeing compared engineers using five criteria: accumulation of responsibility; accumulation of skills; leadership; quality and quantity of work; and attitude.
The salary exercise would begin with working-level meetings among the immediate supervisors of a particular group of engineers. The supervisors used the five stated criteria to rank engineers within their peer group. The working level group then selected a "focal" or "representative to attend totem committee meetings at which all engineers on the DS-4 totem are integrated into a single totem and ranked by relative performance." Id. at 1179. Through a lengthy and multi-dimensional process of meetings and discussions, "the focals and representatives reach consensus on final target salaries and actual salary increases." Id. at 1180. An engineer's final target salary for any given year would be the starting point for the following year's salary exercise. See Vopat Dep. at 154, Appellee's App. at 178.
With that background in mind, we turn to the specifics of Mr. Amro's complaints about his own treatment by Boeing. Mr. Amro alleged in district court that his annual salary adjustments in 1997, 1998 and 1999 were insufficient, that he was denied a "special skills" targeted pay raise in 1997, that he was harassed by his supervisor, and that he was denied a lateral transfer for several months. He asserts that Boeing's actions were discriminatory and in retaliation for his prior lawsuit. In this appeal, he has abandoned his claims based upon his 1998 and 1999 salary adjustments, and he has abandoned his claims based upon the Americans with Disabilities Act, 42 U.S.C. 12101-12213. He continues to argue, however, that he suffered discrimination in connection with his 1997 salary adjustment, that he was wrongly denied the special skills raise, that his supervisor harassed him, and that his transfer was delayed.
The working-level group that first considered Mr. Amro's 1997 salary adjustment was the Wide-Body responsibility group. Randy Henley was Mr. Amro's direct supervisor when the 1997 DS-4 salary review process commenced. Mr. Amro and Kevin Smith, a non-minority engineer, were the only DS-4 engineers under Mr. Henley's direct supervision. Mr. Henley evaluated the two using the five stated criteria. Mr. Henley concluded that Mr. Smith and Mr. Amro were equivalent in accumulation of skills and in attitude. He ranked Mr. Smith higher in leadership and accumulation of responsibility. Mr. Henley testified that Mr. Amro put out a lot of work and that his work quality was good, with probably no more returns than Mr. Smith. "Based on the five criteria, Henley judged Smith a better performer because he had lead responsibilities and more duties than [Mr. Amro]." Amro, 65 F. Supp. 2d at 1180.
The result of the 1997 salary exercise was a $1700 raise for Mr. Amro, which amounted to a 4.2% increase, slightly higher than the 4.0% required by the CBA to be devoted to raises. Of the 303 DS-4 engineers at Boeing's Wichita plant in October 1997, 92%, including Kevin Smith, received salary increases greater than Mr. Amro's. As the district court found:
[t]he average salary adjustment was 10.3 percent for engineers in the targeted low experience group and 6.3 percent for the entire totem group. Henley was aware of two or three other engineers on the DS-4 totem who had the same number of experience years as [Mr. Amro]. He considered [Mr. Amro's] position at the bottom of the ranking for his peer group to be appropriate.
Boeing was experiencing a high rate of attrition among its employees with what Boeing identified as special or critical skills. Other companies were luring those employees away with higher salaries. As a result, Boeing began a program of awarding targeted and annual raises to certain key individuals--engineers with eight years or less experience and engineers with certain critical skills that Boeing did not want to lose. Of the 383 engineers on the DS-4 totem on March 4, 1997, only 34 received supplemental targeted or out-of-sequence raises in 1997. Mr. Amro was not among them.
Mr. Amro met with Mr. Henley and Jerry Kreutzer, his second-level manager, on April 4, 1997, and told them he thought they were discriminating against him. Mr. Henley told him that his medical restrictions prevented him from progressing at Boeing. Mr. Kreutzer told Mr. Amro that his medical restrictions "were like a 'ball and chain' on [his] leg and that until [his] restrictions concerning CATIA use were removed nothing would change about [his] merit increases, [his] retention rankings or [his] B-totem ranking." Amro Aff. 31, Appellant's App. Vol. II at 167.
Mr. Amro alleges that Mr. Henley then angrily left, stating that he would not take this "shit" anymore. Amro Aff. 32, id. Mr. Kreutzer called Mr. Amro a "jackass" and told him he was lucky Boeing had a lot of work at that time. Amro Aff. 33, id. Mr. Amro further avers that, following the meeting, Mr. Henley said to him, "You fucking foreigner, you're lucky to have a job." Amro Aff. 34, id. He also alleges that Mr. Henley placed his hands on Mr. Amro's neck and patted him down, asking whether he had a tape recorder. Finally, Mr. Amro asserts that a few days after that meeting, Mr. Henley threw drawing papers at Mr. Amro, causing a paper cut on his neck.
Mr. Amro also alleges that on another occasion Mr. Henley demanded to search through a brown folder Mr. Amro was carrying, and the subsequent search was humiliating. On one other occasion, when Mr. Amro did not respond to Mr. Henley, Mr. Henley said, Amro Dep. at 87, Appellee's App. at 15. On one final occasion, while Mr. Henley and Mr. Amro were on the shop floor, Mr. Henley said, when Mr. Amro lagged behind. Amro Dep. at 92, id. at 17.
Mr. Amro was notified on March 19, 1997, that his ranking on the B-Totem was 313 out of 383 engineers. At the ...
To continue reading
Request your trial
-
Newman v. Career Consultants, Inc.
...employees outside the protected class received raises. while she did not. See Wilson, 376 F.3d at 1087; Amro v. Boeing Co., 232 F.3d 790, 798 (10th Cir.2000). However, Plaintiff has failed to do so. In fact, she does not attempt to identify a similarly-situated employee outside the protecte......
-
Henderson v. International Union
...Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993)). The court looks to several cases in this circuit for guidance. In Amro v. Boeing Co., 232 F.3d 790 (10th Cir.2000), the Tenth Circuit held that the plaintiff failed to demonstrate adverse employment action where his supervisor called him ......
-
Powers v. Tweco Products, Inc.
...even when reduced to writing, are not generally considered an adverse employment action. Doc. 45, p. 22-23 (citing Amro v. Boeing Co., 232 F.3d 790, 799 (10th Cir.2000) and Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998)). The exception to this rule regarding evaluations ap......
-
Rowland v. Franklin Career Services, LLC, CIV.A. 02-2324KHV.
...(3) he did not receive the promotion; and (4) Mid-America filled the position with a nonminority or it remained open. Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir.2000). Defendants argue that plaintiff cannot establish a prima facie case because the task of taking students to the test si......