Daneshvar v. Graphic Technology, Inc.
| Decision Date | 23 December 1998 |
| Docket Number | No. 97-2304-JWL.,97-2304-JWL. |
| Parties | Bijan DANESHVAR, Plaintiff, v. GRAPHIC TECHNOLOGY, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Lisa White Hardwick, Larry M. Schumaker, Shook, Hardy & Bacon L.L .P., Kansas City, MO, Melissa A. Taylor, Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Bijan Daneshvar, plaintiff.
Joyce R. Rosenberg, Spencer, Fane, Britt & Browne, Kansas City, MO, Jonathan F. Duncan, Blackwell Sanders Peper Martin, LLP, Kansas City, MO, Mark P. Johnson, Rowdy B. Meeks, Sonnenschein, Nath & Rosenthal, Kansas City, MO, for Graphic Technology Inc, defendant.
In this action, plaintiff Bijan Daneshvar claims that defendant Graphic Technology, Inc. failed to promote him on the basis of his race and national origin and terminated his employment in retaliation for engaging in protected activity, all in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Kansas Act Against Discrimination (KAAD), K.S.A. § 44-1001 et seq.1 Plaintiff also claims that defendant violated the notification provisions of the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. § 1161 et seq. Plaintiff seeks backpay, compensatory and punitive damages and reinstatement.
A trial to the court was held in this matter from November 17, 1998 through November 19, 1998. The court has thoroughly considered the evidence and arguments presented at trial. It has relied to a considerable degree on its opportunity to form conclusions about the credibility of the witnesses from close observation of their demeanor while testifying at trial. The court is now prepared to issue its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). For the reasons set forth fully below, judgment is entered in favor of defendant on plaintiff's discriminatory failure-to-promote claims. With respect to plaintiff's retaliatory discharge claim and COBRA claim, however, the court finds in favor of plaintiff and awards plaintiff the relief described below.
Plaintiff Bijan Daneshvar is a United States citizen of Iranian descent and national origin. In 1988, plaintiff began his employment with defendant Graphic Technology, Inc. as an assistant press operator in the rotary department. In its rotary department, defendant produces bar code labels for shipping companies such as Federal Express and United Parcel Service and prescription labels for pharmacies. Plaintiff began his employment on the night shift, but moved to the day shift as soon as he became eligible (after one year of employment). He remained in the assistant press operator position for the duration of his employment with defendant.
On July 11, 1995, defendant posted an opening for a maintenance mechanic position. A maintenance mechanic is primarily responsible for repairing and maintaining production equipment. Plaintiff submitted an application for the position to defendant's human resources department and was interviewed by a woman in the human resources department.2 According to Greg Lueck, defendant's maintenance supervisor at the time the mechanic position was posted, all interviews for the position were conducted by the human resources department. Plaintiff was informed by the woman in human resources that his inability to weld precluded him from further consideration for the position. Plaintiff concedes that he cannot weld, although he expressed a willingness to learn the skill during a 90-day training period described in the job posting. Pat Flaherty, defendant's Operations Manager for the Rotary Department at the time, later informed plaintiff that he did not receive the position because plaintiff could not weld and because defendant needed someone with continuous experience in maintenance.
According to Mr. Lueck, welding is a required skill for the maintenance mechanic position. Moreover, Mr. Lueck testified that if he had to choose between a candidate with welding experience and a candidate without welding experience, he would select the candidate with welding experience. In fact, Mr. Lueck testified that, to his knowledge, defendant had never hired anyone for the position who did not possess welding experience. An external candidate, Max Hankins, was selected for the maintenance mechanic position. Mr. Hankins had welding experience and was required to weld periodically on the job. Mr. Lueck estimated that a maintenance mechanic spends about five to ten percent of his or her working time welding.
On July 15, 1996, defendant posted an opening for the first-shift tool room technician position. The tool room technician is primarily responsible for preparing all rotary jobs before the jobs go to the press floor. The tool room technician, for example, mounts printing plates for press runs and issues due tracking for specific printing jobs. Defendant schedules only one tool room technician to work on each shift and, accordingly, the tool room technician must be able to work independently and with little supervision. In fact, the lead man in the tool room, Eric Hansen, supervises the tool room technician less than twenty-five percent of the time the technician works. Moreover, the tool room technician spends a great deal of time communicating with rotary employees as well as outside vendors.
Six individuals applied for the tool room technician position: Plaintiff; Bart Goodwin; Carlene Johnson; Chris Oots; Lanny Turner; and Jeff Werth. A three-member panel interviewed all applicants for the position except for Mr. Turner, who was not eligible for an interview due to recent disciplinary action. The interview team consisted of Eric Hansen, the lead man in the tool room; D.J. Lynch, the second-shift tool room technician; and Troy Lucas, the first-shift tool room technician whose pending departure created the vacancy for which the six individuals had applied.
After each interview, the panel discussed the applicant's qualifications. Consistent with normal procedures, the panel did not review the personnel files or performance evaluations of the applicants. The panel members did, however, consider their own prior working experience with the applicant in analyzing his or her qualifications for the position.
Eric Hansen had contact with plaintiff on a daily basis and actually worked with plaintiff on several occasions. Mr. Hansen worked with plaintiff in the tool room on three or four occasions over a two- to three-year period. He also worked with plaintiff on a press. Based on these experiences, Mr. Hansen concluded that plaintiff lacked initiative and required a high degree of supervision. Mr. Hansen would often have to give plaintiff explicit instructions and, on many occasions, would have to repeat those instructions. Mr. Hansen verified his conclusions by visiting with several press operators about plaintiff's initiative, including Mike Franklin, Len Cornelius, Dale Patton and Paul Nickel. In addition, Mr. Hansen believed that plaintiff possessed poor verbal communication skills — that plaintiff was difficult to understand and his grasp of the English language was not strong.
The panel recommended Bart Goodwin for the position based on the panel members' experiences with Mr. Goodwin and discussions with press operators and Mr. Goodwin's team leader. Specifically, the panel concluded that Mr. Goodwin possessed good verbal communication skills and would require minimal supervision. Mr. Hansen testified that he believed Mr. Goodwin was "eager to learn" and "highly motivated." Bob Armor, defendant's production manager at the time, accepted the recommendation of the panel. Mr. Goodwin is still employed as the tool room technician.
Mr. Hansen concedes that, on six or seven occasions, he made comments to plaintiff about the Middle East during the Gulf War such as referring to Saddam Hussein as plaintiff's "uncle." Mr. Hansen believed that he and plaintiff were joking and testified that sometimes plaintiff would initiate such banter by asking Mr. Hansen, "How's your buddy in the desert?" Plaintiff testified that such comments made him uncomfortable, that he expressly told Mr. Hansen that he was not from that country, but that Mr. Hansen replied, "All of you are the same because you're from the Middle East." Mr. Hansen denies making this statement.
In October 1996, plaintiff filed a charge of discrimination with the Kansas Human Rights Commission alleging national origin discrimination based on defendant's failure to promote plaintiff to several positions. Plaintiff received his notice of right to sue and, in June 1997, filed this lawsuit.
On July 28, 1997, Jarrod Johnson reported to his supervisor, Bob Armor, that plaintiff was bothering him. Mr. Armor referred Mr. Johnson to Jennifer Van Wagoner, defendant's human resources manager. Mr. Johnson informed Ms. Van Wagoner that he was seated in the lunchroom a few days earlier when plaintiff came up behind him, "stooping down like he was going to do something to [him]" and then ran off laughing when Mr. Johnson saw him. Apparently, plaintiff repeated this three or four times during a five-minute period. Ms. Van Wagoner's notes from her discussion with Mr. Johnson do not reflect that plaintiff ever touched Mr. Johnson. Another employee who witnessed the incident, however, was interviewed in connection with Mr. Johnson's complaint and reported that plaintiff "kept hitting [Mr. Johnson] on the shoulder ... and poking him in the ribs with his fingers." Defendant did not discuss Mr. Johnson's complaints with plaintiff at any time prior to his discharge.
On July 30, 1997, Marci Randel reported to her supervisor, Pat Flaherty, that plaintiff had...
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