Roberts v. Int'l Bus. Machs. Corp.

• Decision Date: 13 September 2012
• Docket Number: Case No. 11–CV–040 JHP–PJC.
• Citation: 896 F.Supp.2d 1068
• Parties: George M. ROBERTS, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

896 F.Supp.2d 1068

George M. ROBERTS, Plaintiff,

v.INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant.

Case No. 11–CV–040 JHP–PJC.

United States District Court, N.D. Oklahoma.

Sept. 13, 2012.

Recognized as Unconstitutional

29 U.S.C.A. § 216(b)

Daniel E. Smolen, Smolen Smolen & Roytman PLLC, Tulsa, OK, for Plaintiff.

Erin K. Dailey, Timothy Alan Carney, Gable & Gotwals, Tulsa, OK, for Defendant.

OPINION AND ORDER¹

JAMES H. PAYNE, District Judge.

Before the Court are Defendant International Business Machines Incorporated's (IBM's) Motion for Summary Judgment,² Plaintiff's Response to Defendant's Motion for Summary Judgment,³ and Defendant's Reply in Support of Defendant's Motion for Summary Judgment.⁴ For the reasons cited below, Defendant's Motion for Summary Judgment is GRANTED.⁵

BACKGROUND

A. Undisputed Material Facts⁶

The instant case arises from the termination of Plaintiff George M. Roberts, an at-will employee, from Defendant IBM's Global Business Services Unit.⁷ Plaintiff was an application developer, responsible for developing and maintaining software applications for IBM client Williams Companies, Inc. (Williams).⁸ Plaintiff's main responsibility was a records management application for Williams called “OmniRim,” which required Plaintiff to both maintain the OmniRim application and resolve customer problems as they arose.⁹ Plaintiff was also responsible for performing similar support work for other smaller applications.¹⁰

Plaintiff was made aware of customer problems through the use of “remedy tickets.” ¹¹ When a customer encountered a problem with the OmniRim application, a remedy ticket describing the issue would be electronically generated and delivered electronically to Plaintiff.¹² Plaintiff was then responsible for responding to the remedy ticket within a certain period of time, either fixing the problem himself or engaging other team members. ¹³ All employees, including Plaintiff, were responsible for updating the status of open remedy tickets at least once a week.¹⁴

In June 2008, Debra Dobson–Morrison became Defendant IBM's Delivery Manager of the Williams account as well as Plaintiff's manager.¹⁵ On or about June 19, 2008, Williams employee Debbie Stubblefield met with Dobson–Morrison to discuss IBM's work on the Williams account.¹⁶ Williams was concerned about the amount of time it was taking to complete remedy tickets for the OmniRim application.¹⁷ At that time, Plaintiff was the only IBM employee supporting the OmniRim application for Williams.¹⁸ Dobson–Morrison's contemporaneous notes from the meeting indicate complaints from Williams that Plaintiff in particular did not understand the scope or issue with the API application and a general complaint about OmniRim remedy tickets not being updated weekly as required and having long resolution times. ¹⁹

Dobson–Morrison's confidential notes reflect an October 15, 2008 meeting with Ms. Stubblefield, at which they again discussed Williams' concerns with Plaintiff's work and the backlog of remedy tickets.²⁰ These notes further reflect that the OmniRim application had 9–10 remedy tickets that had not been updated and that Ms. Stubblefield specifically requested Plaintiff no longer be the direct contact for the applications he supported for Williams. ²¹ At this time, Dobson–Morrison named Kathy Gillespie the team lead for the OmniRim application and asked her to oversee Plaintiff's work. ²² Dobson–Morrison also informed human resources supervisor William

A. Steele of her concerns regarding Plaintiff's job performance.²³

On Plaintiff's 2008 year-end Employee Performance Feedback Form, Dobson–Morrison noted client complaints and also noted Plaintiff's lack of collaboration teamwork and Plaintiff's difficulties in following through and setting priorities.²⁴ The Form also states that Plaintiff refused to train a back-up employee and notes that this is likely because Plaintiff believed that a lack of a back-up provided him job security.²⁵ Based on the job performance issues cited, Plaintiff received a 2008 year-end performance based review rating of “PBC 3,” signifying he was among the lowest contributors compared to his peers supporting the Williams account and that his performance required improvement.²⁶ Plaintiff made no comments and offered no disagreement regarding the poor performance review in the space provided for comments.²⁷

Around February or March of 2009, Plaintiff was selected as part of a resource action named “Project Blue.” ²⁸ Resource actions are similar to reductions in force and seek to identify skill sets or practice areas for which there is an overabundance of “resources” or employees.²⁹ Although performance does not factor into what skill areas are selected for a resource action, performance may be a factor in selecting the individuals who will be subject to termination as a result of the resource action.³⁰ Plaintiff was ultimately not terminated as a result of his inclusion in “Project Blue.” ³¹

In March of 2009, Dobson–Morrison and Steele met with Plaintiff to discuss his 2008 performance review and informed Plaintiff that although they had seen some improvement in his job performance, they would need to see further and sustained improvement to consider his performance satisfactory.³² Plaintiff's performance was again formally evaluated on the 2009 Mid–Year Employee Performance Feedback Form prepared by Dobson–Morrison.³³ This review states that Plaintiff lacked strong time-management skills and required significant guidance.³⁴ The Form further notes that Plaintiff's, as well as other team members', client communications sometimes lacked professionalism and were not always clear and concise.³⁵ The form also noted that Plaintiff in particular had failed to provide requested information and failed to answer direct questions.³⁶

The 2009 Mid–Year Form also details a problem concerning client Williams sending “false complimentary notes” to Plaintiff in an effort to motivate him through positive reinforcement.³⁷ Plaintiff cites these complimentary notes, referred to as “kudos,” in an effort to demonstrate that Williams was not complaining about Plaintiff's work.³⁸ However, the affidavit of Williams employee Ryan Zilm, who sent the “kudos” to Plaintiff, indicates (1) that Zilm found Plaintiff's technical skills marginal; (2) that Plaintiff took longer to complete tasks and projects than was necessary; (3) that the “kudos” in question were simple thank-you notes sent when Plaintiff completed tasks “relatively quickly;” and (4) that the notes were sent in an effort to motivate Plaintiff and did not reflect Zilm's overall satisfaction with Plaintiff's performance.³⁹

On July 23, 2009, based on the continuing poor performance reviews, Plaintiff was offered the option to accept either an Individual Separation Allowance Plan (ISAP), under which Plaintiff could voluntarily resign and receive a severance package, or be placed on a 60–day Performance Improvement Plan (PIP).⁴⁰ On August 12, 2009, Plaintiff indicated via email that he did not wish to accept the ISAP.⁴¹ In response, Plaintiff was informed by Steele should Plaintiff choose to be placed on the PIP, failure to successfully complete the PIP could result in Plaintiff's termination without any form of severance.⁴² It was shortly after this email, on August 14, 2009, that Plaintiff filed his first OHRC charge, alleging that Defendant's discipline of Plaintiff was the result of age discrimination.⁴³

On September 2, 2009 Plaintiff was placed on the PIP, under which Plaintiff had weekly meetings with Steele and Dobson–Morrison to discuss his performance. ⁴⁴ Plaintiff completed the PIP on or about November 2, 2009, at which time Plaintiff was advised that he needed to show sustained improvement or his employment could be terminated.⁴⁵ Concerns about the quality of Plaintiff's work and communications with clients began again shortly after his completion of the PIP.⁴⁶ On January 27, 2010, Plaintiff was terminated for unsatisfactory job performance. Subsequent to his termination, Plaintiff's position was initially “backfilled” by 28 year old Manpreet Duggal.⁴⁷ Shortly thereafter Duggal's workload was absorbed by two employees, Susan Wright and Kathy Gillespie.⁴⁸

B. Relevant Procedural History

On August 14, 2009, after refusing the ISAP, Plaintiff filed his first OHRC Charge alleging age discrimination and retaliation.⁴⁹ On February, 8, 2010, subsequentto his January 27, 2010 termination, Plaintiff filed an EEOC Intake Questionnaire alleging he was terminated in direct retaliation for the August 14, 2009 Charge.⁵⁰ Plaintiff signed a formal OHRC Charge based on the allegation in this Questionnaire on August 31, 2010. ⁵¹

Plaintiff received an EEOC Right to Sue Letter for the first OHRC Charge on September 30, 2010.⁵² On December 21, 2010, within the 90 days provided in the Right to Sue Letter, Plaintiff filed suit in Tulsa County District Court alleging four causes of action: (1) Discrimination Based on Age contrary to Oklahoma's anti-discrimination statute and pursuant to the Burk public policy tort; (2) Discrimination Based on Age pursuant to the ADEA; (3) Retaliation for reporting age-based discrimination (whistleblowing) contrary to Oklahoma's anti-discrimination statute and pursuant to the Burk public policy tort; and (4) Retaliation in Violation of Title VII.⁵³

Defendant removed the case to this Court on January 18, 2011 pursuant to this Court's original jurisdiction over Plaintiff's ADEA claim under 28 U.S.C. § 1331 and supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367.⁵⁴ On February 8, 2010 Defendant filed a Partial Motion to Dismiss Plaintiff's First, Third, and Fourth claims for relief, claiming that Plaintiff had (1) failed to timely file a complaint of discrimination with the OHRC with regard to his first and third claims, (2) that Plaintiff had not based his Burk discrimination claim on his termination as is required under Burk and ...