Murdick v. Catalina Marketing Corp., 8:05-cv-2172-T-17MAP.

• Decision Date: 11 July 2007
• Docket Number: No. 8:05-cv-2172-T-17MAP.,8:05-cv-2172-T-17MAP.
• Citation: 496 F.Supp.2d 1337
• Parties: Scott P. MURDICK, Plaintiff, v. CATALINA MARKETING CORPORATION, Defendants.
• Court: U.S. District Court — Middle District of Florida

Page 1337

496 F.Supp.2d 1337

Scott P. MURDICK, Plaintiff, v. CATALINA MARKETING CORPORATION, Defendants.

No. 8:05-cv-2172-T-17MAP.

United States District Court, M.D. Florida, Tampa Division.

July 11, 2007.

COPYRIGHT MATERIAL OMITTED

Ginger A. Degroff, Tampa, FL, for Plaintiff.

Ann Marie Hensler, William B. Demeza, Jr., Holland & Knight, LLP, TAMPA, FL, for Defendants.

ORDER ON MOTION TO STRIKE AFFIDAVITS FILED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, AND ON MOTION FOR SUMMARY JUDGMENT

KOVACHEVICH, District Judge.

This cause comes before this Court on two motions-and-incorporated-memoranda-in-support filed by Defendants, Catalina Marketing Corporation ("Catalina") (Docket Nos. 9 and 17), and a memorandum-in-opposition then filed by Plaintiff, Scott P. Murdick ("Murdick") (Docket No. 15). Defendants filed a Dispositive Motion for Summary Judgment and Incorporated Memorandum of Law In Support (Docket.No. 9), to which Plaintiff in response filed a Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (Docket No. 15). Defendants then filed a Motion to Strike Plaintiff's Affidavits Filed in Opposition to Motion for Summary Judgment (Docket No. 17), to which Plaintiff has not responded. The following facts are taken as true for the purposes of resolving the issues raised by the pending motions.

BACKGROUND

Defendant Catalina is a Corporation that provides targeted marketing services and programs for consumer packaged goods manufacturers, pharmaceutical manufacturers, marketers, and retailers. Catalina employs over 1,100 employees in the United States, Europe, and Japan. Catalina's Information Technology ("IT") department is responsible for all of Catalina's computer systems, including its primary revenue generating services. William Geffert ("Geffert"), Vice President of Information Technology for Catalina, has overall responsibility for the IT department's operations, including discipline and discharge of its personnel. The department is divided into various work groups, each of which is headed by an Executive Director, who reports to Geffert. One such work group is "Enterprise Services," which is run by John Kuemmel ("Kuemmel"). Part of the Enterprise Services work group is the "server team," which is responsible for server operations, engineering, and support.

Plaintiff Murdick was a Senior Systems Engineer in the IT department for Catalina since his date of hire in November, 1998. He remained in that position until his date of discharge in June, 2005. In 2003 Catalina reorganized its IT department. As part of that restructuring, Catalina hired Brad Schulz ("Schulz") as a Systems Engineering Manager, and placed him in charge of the server and network teams. Schulz reported to Kuemmel, and supervised five employees on the server team. One of the employees Schulz supervised was Murdick, who was assigned to the server team in June, 2003.

Prior to 2003, Murdick would have had five annual performance reviews, and four had been presented for review. Catalina's reviews of Murdick generally consist of evaluations of how Murdick met objectives, and a summary of performance, among other things. If the objective was of critical importance, it was classified as a "1." If the objective was of high importance, it was classified as a "2." If the objective was of routine importance, it was classified as a "3." How Murdick performed with respect to each objective was rated on a scale of "1" to "5," with "1" being "far below expectations," "2" being "below expectations," "3" being "meets expectations," "4" being "exceed expectations," and "5" being "far exceeds expectations."

Consistent throughout Murdick's reviews up to and including his March, 2003 review, his last review that was not conducted by Schulz, is the theme that Murdick had great technical ability, was very dependable, and was willing to work as necessary to complete tasks, but he was not always receptive to new ideas or criticism, could benefit from seeing the big picture, and could use improvement in his interpersonal skills.

On his March, 1999 review, of the nine objectives, six met expectations, two exceeded expectations, and one was below expectations. The one that was marked below expectations was the only one of routine importance; the remaining were considered of high or critical importance. This review also contained a section for reviewing a total of twelve various personality characteristics. Seven of those met expectations, two exceeded expectations, and three far exceeded expectations. In summary, in twenty-one areas of review, he was below expectations in only one. This is despite the fact that his interpersonal skills were clearly an area for improvement. Finally, although in a different format from the other reviews, the summary section concludes that his performance was "Successful," which equates to exceeding expectations as it is the fourth of five possible ratings on this evaluation.

On the second review, in March of 2000, of four objectives for review, Murdick met expectations in one, exceeded expectations in two, and far exceeded expectations in one. There was no mention of not meeting expectations, as his performance was deemed to exceed expectations in the summary area of the review. There is no mention of any interpersonal issues as this review focused on Murdick's technical contribution to Catalina.

On his third review, in March of 2001, of three objectives for review, Murdick met expectations in one, and exceeded expectations in the other two. His performance was deemed to exceed expectations in the summary area, although the review indicates a clear awareness of a lack of diplomacy in his communications with others.

Murdick's fourth review is absent, so it can not be considered. Murdick's fifth and final review not conducted by Schulz, from March, 2003, has five objectives. He met expectations in two, and exceeded expectations in the other three. In the summary section his performance was deemed to exceed expectations, though there is mention of his lack of interpersonal skills.

In summary of the available pre-Schulz evaluations of Murdick, in thirty-three areas of evaluation, only once was Murdick's performance deemed to fall below expectations (3%), and that area was only of routine importance. He was deemed to meet expectations seventeen times (52%), exceed expectations eleven times (33%), and far exceed expectations four times (12%) In the summary of performance sections, he was rated as exceeding expectations four of four times. Since 97% of his individual ratings on these evaluations were at or above expectations, it can be inferred from these evaluations that he was deemed to be an asset to Catalina, in spite of his weaknesses. (Of note is the fact that each evaluation was performed by a different supervisor, and one evaluation is inexplicably missing. Also of note is the fact that in his fifth review, conducted by John Kuemmel, his performance was deemed to exceed expectations despite his weaknesses. John Kuemmel later participated in the decision to dismiss Murdick based on Schulz's negative evaluations.)

Three months after his fifth review, in June, 2003, Murdick was assigned to work for Schulz as part of the server team. In August, 2003, Murdick and Schulz took a business trip, together to Tokyo, Japan. On that trip, Murdick alleges that he and Schulz were at dinner on the first night, when Schulz began a conversation about the Bible, to which Murdick responded that he was a Buddhist. He alleges that he did this to correct Schulz's assumption that he was a Catholic, and to inform Schulz that he was a Buddhist, in anticipation of a planned trip to Canon's temple, a Buddhist temple. He alleges that discussion ended with that comment. Murdick further alleges that on one occasion when he and Schulz were leaving their place of work they had a conversation about a Harry Potter book. During this conversation Murdick alleges that Schulz said the Harry Potter book was "devil worship," and was "evil" because it involves a witch. Murdick alleges that he responded by saying that was "not right." He further alleges that he told Schulz that he was a Buddhist, and asked Schulz if he (Murdick) and all Buddhists were evil, to which Schulz allegedly said "yes," [they were all evil].

Schulz claims that he was not aware that Murdick claimed Buddhism as his religion. He states that on a plane ride to Japan for business, Murdick offered to let him read his Harry Potter book. Schulz says he declined because he was not interested in Harry Potter books because of their sorcery content. He says that after Murdick pressed the issue, Schulz told him that the bible refers to sorcery as "evil." He denies having said that Buddhists were evil, or that Harry Potter is devil worship. He also states that he and Murdick visited Buddhist temples, but that Murdick did not mention that they were significant to him in any way. He says that the first time he became aware of Murdick being a Buddhist was when Murdick filed an Equal Employment Opportunity Commission ("EEOC") complaint in August, 2005. To counter this claim by Schulz, Murdick provides pictures taken at the Buddhist temple, during which he participated in some Buddhist rituals, all within view of Schulz. Alleging that as such, Schulz could not have been unaware of Murdick's participation in the rituals. These rituals included pulling smoke from burning prayer scrolls, and sitting in a half-lotus position. He further alleges that he explained the significance of these actions to Schulz, and told Schulz he was a Buddhist both before and after the visit to the temple.

Starting in December, 2003, four months after the time when Murdick alleges Schulz learned of his Buddhism, Catalina documents a series of incidents that it claims demonstrate that Murdick's performance as an employee was below expectations. The last of these events was in the spring of 2005. The...