Nakai v. Wickes Lumber Co., Civ. No. 95-54-P-C.

• Decision Date: 28 November 1995
• Docket Number: Civ. No. 95-54-P-C.
• Citation: 906 F. Supp. 698
• Parties: Hideaki NAKAI, Plaintiff v. WICKES LUMBER COMPANY, Defendant.
• Court: U.S. District Court — District of Maine

906 F. Supp. 698

Hideaki NAKAI, Plaintiff v. WICKES LUMBER COMPANY, Defendant.

Civ. No. 95-54-P-C.

United States District Court, D. Maine.

November 28, 1995.

COPYRIGHT MATERIAL OMITTED

Dennis Levandoski, Falmouth, Maine, for Plaintiff.

Louis B. Butterfield, Portland, Maine, Timothy W. Johnson, John R. Crenshaw, Crenshaw & Johnson, Atlanta, GA, for Defendant.

MEMORANDUM AND ORDER GRANTING IN PART, AND DENYING IN PART, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GENE CARTER, Chief Judge.

Plaintiff Hideaki "Dick" Nakai, a former employee of Defendant Wickes Lumber Company ("Wickes Lumber"), brings this action alleging that Defendant discharged him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981, 1981a (Count I); the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. (Count II); and the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq. (Count III). Now pending is Defendant's Motion for Summary Judgment (Docket No. 8). For the following reasons, this Court will grant Defendant's motion as to Plaintiff's age discrimination claim and will deny it as to Plaintiff's race discrimination and retaliation claims.

I. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate when "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). Indeed, this Court must grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). "Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds, 896 F.2d 5, 8 (1st Cir.1990). When deciding a motion for summary judgment, this Court considers the facts in the light most beneficial to the nonmovant, drawing all reasonable inferences in favor of Plaintiff. Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir.1994).

II. MATERIAL FACTS

Plaintiff Nakai was born of Japanese ancestry in 1943 in Arizona. Complaint (Docket No. 1) ¶¶ 5-6. He worked for Defendant Wickes Lumber from January 1972 until October 1993. Affidavit of Hideaki Nakai (Docket No. 16) ¶ 1. The last eleven of these nearly twenty-two years were spent as the manager of Defendant's Portland, Maine store. Nakai Aff. ¶ 1. During Nakai's tenure with Wickes Lumber, he garnered several commendations, including Five-, Ten-, Fifteen-, and Twenty-Year Service Awards; Top Managers Program in 1980, 1981, and 1984-89; and "Vice President's Maine sic of the Year in 1984." Affidavit of Dennis Levandoski Exhibit C (Docket No. 15) at 2. Moreover, in February or March of each year from 1984 through 1993, Nakai received a performance appraisal for the preceding year. From February 1984 through February 1991, Nakai was rated "Highly Satisfactory," the highest possible rating. Nakai Aff. ¶ 6.

Sometime in early 1992, Charles E. "Chuck" Price, Jr., became Nakai's supervisor. At around the same time, the Portland store of Wickes Lumber began to perform worse than most but not all other stores, both nationwide and in the region. Levandoski Aff.Ex. C; Nakai Aff. ¶ 3. See Plaintiff's Objection to Defendant's Motion for Summary Judgment and Supporting Memorandum (Docket No. 13) at 1. When Price gave Nakai his annual performance appraisals in early 1992 and 1993, Nakai's rating dropped to merely "Satisfactory." Nakai Aff. ¶ 6. In March of 1993, Price told Nakai that he was approaching a "crossroads" in his career. Levandoski Aff. Ex. D.

On May 21, 1993, Price sent Nakai a strongly worded memo ("May Memo") expressing disappointment with Nakai for allowing a "breach in credit and administrative procedures." Affidavit of Richard Bradford (Docket No. 11) Attachment B. The May Memo specifically enumerates the effects of this breach: $80,585 of bad debt at the Portland store through the first four months of 1993, as well as $200,000 of potential exposure to additional bad debt. Bradford Aff. Att. B. The May Memo specifically instructs Nakai on how best to remedy the breach: arrange meetings between large debtors and the credit department by May 28 and then, based on those meetings, develop a "specific, time phased (90 days max.)" action plan designed to maximize collections and minimize losses.¹ Bradford Aff.Att. B. In addition, Price expresses his intention to develop with Nakai a "strategic plan" "for leading the pro sales efforts at the Portland center." Bradford Aff.Att. B. Price concludes his directives by admonishing that "future violations, or failure to implement above corrective actions, will lead to further disciplinary action, which could include discharge." Bradford Aff.Att. B.

Also in late May 1993, James Klopp, manager of another Wickes Lumber store in Maine, reported to Nakai that Price had called Nakai a "slant-eyed son of a bitch." Bradford Aff. ¶ 6-7.² Nakai responded on May 27 by informing Wickes Lumber's Human Resources Department of the comment. Levandoski Aff.Ex. D. On June 4, Nakai was contacted by a Wickes Lumber vice-president, who told him the allegation was taken seriously and promised to inform him of the results. Levandoski Aff.Ex. D. Nakai met with Price and Bradford, Area Vice-President of Wickes Lumber, on June 9 to discuss the incident. Bradford Aff. ¶ 9. Although Price denied making the remark, he nevertheless got "in trouble" in the form of receiving "strong counsel" from Bradford. Levandoski Aff. ¶ 10; Bradford Aff. ¶ 8. On or about June 10, Price and Nakai met and formulated an "action plan" ("June Action Plan") requiring Nakai to perform specific managerial tasks and achieve specific performance goals.³ Bradford Aff. ¶ 10.

On July 29, Price issued to Nakai the first "Mid-Year Performance Appraisal" Nakai had ever received ("July Evaluation"). Bradford Aff.Att. C at 1; Nakai Aff. ¶ 2. Nakai was rated in five categories: sales management, margin control, expense control, inventory control, and credit. Bradford Aff.Att. C. On a scale of one to five, the weighted average of his scores in these categories was 1.4. Bradford Aff.Att. C at 7. Price supported his scoring for all five categories by specifically comparing actual with budgeted store performance figures, and by elaborating on that comparison with comments. Although Nakai now characterizes this evaluation as "very unfair" (Levandoski Aff.Ex. D), he neither contests the accuracy of the specific actual or budgeted performance figures nor adduces any evidence that the budgeted figures, though accurate, constitute unattainably high expectations. In concluding the July Evaluation, Price placed Nakai on probation, noting that if Nakai did not "meet the revised goals, or implement the prescribed action plans by the end of September, he could face termination." Bradford Aff.Att. C at 7.

Sometime after September 8, Price issued another evaluation⁴ of Nakai's job performance in a document entitled "Action Plan Results—thru sic Period 9" ("September Results"). Bradford Aff.Att. A. at 1. Now analyzing Nakai's work in terms of three main categories, sales, margins, and expenses, Price once again compares actual store performance with the specific goals set forth in June. Even though Nakai met goals in some areas, Price cited deficiencies in others in concluding that "Dick Nakai has not met the terms of his probation." Bradford Aff.Att. A at 4. Once again, Nakai neither contests the existence of the substantial discrepancy reported in the September Results between projected goals and actual performance, nor offers any proof to support his claim that those goals are somehow unreasonably high. More specifically, Nakai does not dispute that even though the June Action Plan required him to develop on a timely basis a formal contractor sales plan for his sales representatives, to require his sales representatives to make 20 phone calls each week to solicit business, and to adhere strictly to company credit policies, he failed to do so.

Dick Nakai was fired on October 14, 1993, and filed a complaint with the Maine Human Rights Commission and the United States Equal Employment Opportunity Commission on October 20, 1993. No other store managers in Price's zone were fired. Nakai Aff. ¶ 5. Defendant has produced no evidence of action plans or mid-year evaluations given to other store managers in Price's zone. Nakai Aff. ¶ 5; Levandoski Aff. ¶ 8. All other store managers in Price's zone were Caucasian. Nakai Aff. ¶ 7.

III. DISCUSSION

Nakai essentially makes three claims regarding his discharge, that it was: (1) based on his age in violation of the ADEA (Count II); (2) based on his race in violation of Title VII (Count I); and (3) in retaliation for reporting Price's racially biased remark in violation of Title VII (Count I).⁵ Plaintiff bears the burden of persuasion at all times for all three claims. See St. Mary's Honor Center v. Hicks, ___ U.S. ___, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Because Plaintiff lacks direct evidence of the various unlawful motivations alleged, however, the burden of production for all those claims shifts in accordance with the three-step order of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972). See Sanchez v. Puerto Rico Oil Co., 37 F.3d 712 (1st Cir.1994) (applying McDonnell Douglas to claims of age-based discriminatory discharge under the ADEA); Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 (1st Cir.1987) (applying McDonnell Douglas to claims of...