Cheeks v. Gen. Dynamics
| Decision Date | 19 May 2014 |
| Docket Number | No. CV–12–01543–PHX–JAT.,CV–12–01543–PHX–JAT. |
| Citation | 22 F.Supp.3d 1015 |
| Parties | Loretta H. CHEEKS, Plaintiff, v. GENERAL DYNAMICS, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Robert T. Weeks, Weeks Law Office PLLC, Phoenix, AZ, for Plaintiff.
Mark G. Kisicki, Ogletree Deakins Nash Smoak & Stewart PC, Phoenix, AZ, for Defendants.
Pending before the Court is Plaintiff Loretta H. Cheeks Motion for Partial Summary Judgment (Doc. 85) on Defendants General Dynamics Corporation (“GD”) and General Dynamics C4 Systems Incorporated's (“GDC4S”) affirmative statute of limitations and failure to mitigate damages defenses and GDC4S's counterclaim for breach of contract. Also pending is Defendants' Motion for Summary Judgment (Doc. 93) on all of Plaintiff's claims and on GDC4S's counterclaim. Both motions are fully briefed (Docs. 90, 94, 95, 102) and the Court heard oral argument on May 15, 2014. The Court now rules on both motions.
Defendant GD is the parent company of Defendant GDC4S. (Defendants' Statement of Facts in Support of Motion for Summary Judgment (“DSOF”), Doc. 88 ¶ 1; Plaintiff's Statement of Facts in Response to Motion for Summary Judgment (“PRSOF”), Doc. 96 ¶ 1). Plaintiff (a female African–American with a son disabled by autism
) began her employment with GDC4S in September 2001 after GDC4S acquired the division of Motorola where Plaintiff worked. (DSOF ¶ 19; PRSOF ¶ 19). As a condition of employment, Plaintiff signed an Employee Confidentiality Agreement in which she agreed not to remove or possess GDC4S property or documents without prior written consent. (DSOF ¶ 20; PRSOF ¶ 20).
Plaintiff was one of thousands of engineers employed by GDC4S whose career paths generally lead to development of either specialized technical or management skills. (DSOF ¶¶ 4–7; PRSOF ¶¶ 4–7). GDC4S divides its engineers into “sections” managed by a “Section Manager” who helps the engineers find (often temporary) assignments on various customer-funded programs, business development projects, or internal research and development projects. (DSOF ¶¶ 8–10; PRSOF ¶¶ 8–10). The Section Managers often work directly with “Program Managers” in an informal process to help place engineers in specific projects. (DSOF ¶¶ 10–14; PRSOF ¶¶ 10–14). When engineers are not assigned to a specific project, they charge their work time as department “overhead.” (DSOF ¶ 12; PRSOF ¶ 12). An engineer's grade level, title, salary and benefits do not change regardless of whether the engineer is assigned to a project or charging overhead because GDC4S anticipated it will be able to find future assignments for its engineers. (DSOF ¶ 13; PRSOF ¶ 13). If an engineer seeks a promotion or transfer to a different position involving a title, pay, department, or grade change, then the engineer must formally apply for an open position through GDC4S's Internal Opportunity System (“IOS”). (DSOF ¶ 15; PRSOF ¶ 15).
During her employment, Plaintiff variously worked on customer-funded projects and internal “overhead.” Plaintiff's early customer-funded project assignments tended to be focused on management duties rather than technical aspects of the project. (DSOF ¶¶ 32–36, 41; PRSOF ¶¶ 32–36, 41). In 2004, Plaintiff was removed from a position as project lead on the “Rescue 21” project because of perceived performance issues. (DSOF ¶ 63; PRSOF ¶ 63). After being removed, Plaintiff filed an internal complaint through GDC4S's Dispute Resolution Program (“DRP”) (DSOF ¶ 69; PRSOF ¶ 69). Although Plaintiff now alleges that the 2004 DRP complaint was also motivated by racial, sexist, and anti-disability bias, she admits that her primary purpose in filing the complaint was to find a position on a customer-funded program. (DSOF ¶¶ 71–75; PRSOF ¶¶ 71–75). Sometime during the pendency of the 2004 DRP complaint investigation, Plaintiff was placed on a “Mobile User Objective System” (“MUOS”) project, which, at the time, Plaintiff agreed resolved her complaint. (DSOF ¶¶ 68, 74, 77; PRSOF ¶¶ 68, 74, 77). Between 2005 and 2009, Plaintiff worked variously on business development and other projects, described her experience as “outstanding,” and, at multiple times, worked on overhead without any resulting adverse employment actions or other negative impacts. (DSOF ¶¶ 78–83; PRSOF ¶¶ 78–83).
Beginning in 2009, drastic government spending cuts (GDC4S's develops technology primarily for government customers) dramatically decreased opportunities for GDC4S engineers. (DSOF ¶¶ 84–91; PRSOF ¶¶ 84–91). In May 2010, Terry O'Dea (“O'Dea”) became Plaintiff's section manager and began working to place Plaintiff and other engineers who had no assignment onto available programs. (DSOF ¶¶ 93–99; PRSOF ¶¶ 93–99). The various program managers offered neither Plaintiff nor many of O'Dea's other engineers (most of whom where Caucasian males) assignments on their projects. (DSOF ¶¶ 106, 111–13; PRSOF ¶¶ 106, 111–13).
Only one program at GDC4S provided a significant number of assignment opportunities (eventually, 72 assignments) in 2010 and 2011: the new Space Network Ground Segment Sustainment (“SGSS”) satellite program for NASA which started staffing in the fall of 2010. (DSOF ¶¶ 101, 179; PRSOF ¶¶ 101, 179). The SGSS program managers, Bill Worger (“Worger”) and Vince Pipitone (“Pipitone”), sought engineers with substantial relevant technical experience and informally made assignment decisions based largely on their personal knowledge of each individual's relevant work experience. (DSOF ¶¶ 180–84; PRSOF ¶¶ 180–84). O'Dea (and other section managers) informally sent lists of available engineers, but most, including Plaintiff, were not specifically considered for SGSS assignments. (Id. ). Thus, throughout the vast majority of 2010, Plaintiff, as well as many other engineers, had no assignment and charged overhead.
In January 2011, O'Dea expressed growing concern with engineers charging overhead and Plaintiff requested a meeting with O'Dea and HR representatives to express her concerns about finding assignments. (DSOF ¶¶ 185, 187; PRSOF ¶¶ 185, 187). Prior to meeting, Plaintiff emailed O'Dea: which Plaintiff honestly believed. (DSOF ¶¶ 188–89; PRSOF ¶¶ 188–89). Shortly thereafter, O'Dea completed the 2011 performance review process of his engineers' 2010 performance. (DSOF ¶ 191; PRSOF ¶ 191). During the process, O'Dea gave a “Needs Improvement” rating to all ten engineers, including Plaintiff, who did not have sufficient customer-funded assignments in 2010 from which performance could be evaluated.2 (DSOF ¶¶ 191–92; PRSOF ¶ 191–92). At that point, O'Dea planned to place all ten engineers on a Performance Improvement Plan (“PIP”) because he thought it was required by company policy. (DSOF ¶ 193; PRSOF ¶ 193). However, O'Dea later learned that a PIP was not mandatory and he did not place any engineers, including Plaintiff, on a PIP. (DSOF ¶¶ 194–95, 204–06; PRSOF ¶¶ 194–95, 204–06).
On February 3, 2011, Plaintiff filed an administrative charge with the EEOC against GDC4S alleging that her 2004 removal from the Rescue 21 program, various denials of program assignments since that time, and January 2011 placement on a PIP (which did not actually occur) were motivated by racial and sex-based discrimination and retaliation for her 2004 DRP complaint. (DSOF ¶ 207; PRSOF ¶ 207). Later that February, Plaintiff filed charges with the OFCCP claiming that the same actions occurred because of her association with a disabled son. (Id. ). Kevin Jardine, a HR representative, received the EEOC and OFCCP charges, forwarded them to the legal department, and did not disclose the charges to O'Dea or other managers. (DSOF ¶¶ 208–10; PRSOF ¶¶ 208–10). However, O'Dea learned about the charges as part of GDC4S's legal department's investigation. (DSOF ¶ 211; PRSOF ¶ 211).
By the spring of 2011, the number of engineers O'Dea was attempting to find an assignment for had increased to 25 or 30. (DSOF ¶ 214; PRSOF ¶ 214). On March 1, 2011, O'Dea informed Plaintiff of a short assignment assisting a MUOS manager with various tasks, which Plaintiff accepted. (DSOF ¶¶ 215–16; PRSOF ¶¶ 215–16). O'Dea continued to search for longer-term projects for Plaintiff and emailed her multiple IOS requisitions, but noted that they required relocation; Plaintiff declined to apply for any of the positions (DSOF ¶¶ 217–19; PRSOF ¶¶ 217–19). Also in March, O'Dea successfully placed Plaintiff on a longer-term MUOS assignment under Ivan Hobson (“Hobson”) and Starlene Maskalenko (“Maskalenko”). (DSOF ¶¶ 220–25; PRSOF ¶¶ 220–25).
Shortly after Plaintiff began working on the MUOS project, she received emails one weekend with task requests. (DSOF ¶ 249; PRSOF ¶ 249). In response, Plaintiff sent an email to Hobson and other MUOS managers on Monday, April 4, 2011 stating: 3 (Id. ). The MUOS managers expressed dissatisfaction with Plaintiff's email and forwarded it to O'Dea. (DSOF ¶¶ 253–54; PRSOF ¶¶ 253–54). In particular, Hobson expressed an expectation that Plaintiff would be available for work on Fridays.4 (PRSOF ¶ 533). Also, Maskalenko forwarded other emails to O'Dea that indicated Plaintiff had communication performance problems prior to her April 4 email. (DSOF ¶ 254; PRSOF ¶ 254).
On April 5, 2011, O'Dea emailed HR seeking approval of a draft email response to Plaintiff. (Id. ¶ 538). The draft email states:
As an exempt employee you cannot define your job to be a specific number of hours per week, nor the days you will work. Anyone supporting a program must be flexible and willing to work what is asked.... It concerns me when I've worked so hard to find you a position on a paying program, and you tell them as an exempt employee you'll only work the schedule you've defined. This has caused them to question your role on MUOS, and certainly your...
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