Shinwari v. Raytheon Aircraft Co.

• Decision Date: 23 July 1998
• Docket Number: No. CIV. A. 97-2617-KHV.,CIV. A. 97-2617-KHV.
• Citation: 16 F.Supp.2d 1308
• Parties: Mohammad M. SHINWARI, Plaintiff, v. RAYTHEON AIRCRAFT COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

16 F.Supp.2d 1308

Mohammad M. SHINWARI, Plaintiff, v. RAYTHEON AIRCRAFT COMPANY, Defendant.

No. CIV. A. 97-2617-KHV.

United States District Court, D. Kansas.

July 23, 1998.

COPYRIGHT MATERIAL OMITTED

Bobbie R. Bailey, Kansas City, MO, for Plaintiff.

Terry L. Mann, Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

On December 4, 1997, plaintiff filed suit against his former employer, Raytheon Aircraft Company, seeking damages for employment discrimination and retaliation in violation of 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended; for retaliation under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; and for breach of contract. This matter comes before the Court on defendant's Motion For Partial Dismissal (Doc. # 24) filed January 12, 1998, and defendant's Motion For Summary Judgment (Doc. # 62) filed April 29, 1998.

For reasons stated more fully below, the Court finds that both motions should be sustained.

Summary Judgment Standards

Summary judgment is appropriate if 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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson at 251-52, 106 S.Ct. 2505. Ever mindful of these summary judgment standards, the Court now turns to the merits of defendant's motion.

Introduction

Before we begin our factual discussion and analysis, we trace the various claims that plaintiff has advanced throughout the history of this dispute. We briefly summarize the chronology to determine what claims remain at this stage.

A. EEOC Complaint

Plaintiff filed his complaint with the Equal Employment Opportunity Commission ("EEOC") on April 21, 1997. In that complaint, plaintiff checked the categories labeled "national origin," "age" and "retaliation." Plaintiff did not check the categories labeled "race" or "color." Plaintiff's written statement charged that age was the motivating factor in Raytheon's systematic demotion and/or elimination of older workers, and that Raytheon treated him unfairly and terminated him because of age and in retaliation for complaints about discrimination.¹ The written statement in support of the charge contained no reference to plaintiff's national origin. On September 5, 1997, plaintiff received the EEOC determination and Notice of Right to Sue pursuant to the ADEA.

B. Complaint

On December 3, 1997, plaintiff filed suit. His complaint charged Raytheon with unlawful age discrimination in violation of the ADEA, and unlawful discrimination on the basis of color, race, and national origin in violation of Title VII and Section 1981. The complaint also charged Raytheon with unlawful retaliation in violation of the ADEA, Title VII, and Section 1981, and breach of an implied contract of employment.

C. Pretrial Order

In the pretrial order plaintiff claimed that Raytheon discriminated and retaliated against him in violation of Section 1981 and Title VII (but not the ADEA). Pretrial Order (Doc. # 58) filed April 21, 1998. In support of his discrimination claims, plaintiff described his national origin as Pakistani but he did not claim to be a member of any group which was protected on the basis of race, color, or ethnicity. In support of his retaliation claims, plaintiff asserted that Raytheon fired him in response to his complaints of unlawful discrimination. Plaintiff also reiterated his claim for breach of implied contract, which he modified to include breach of express contract. Plaintiff sought damages under Title VII, Section 1981, the ADEA, and for breach of contract.

D. Plaintiff's Opposition To Defendant's Motion For Partial Dismissal and Opposition To Defendant's Motion For Summary Judgment

In his opposition to Raytheon's motion for partial dismissal, plaintiff conceded his claim for national origin discrimination under Section 1981, as well as his claim for discrimination under the ADEA. Plaintiff's Opposition To Defendant's Motion For Partial Dismissal (Doc. # 32) filed January 30, 1998. In Plaintiff's Opposition To Defendant's Motion For Summary Judgment (Doc. # 71) filed June 1, 1998, plaintiff abandoned all of his discrimination claims, stating that "[a]t this stage, plaintiff is conceding that he was not the victim of unlawful discrimination, and is instead focusing on the retaliation that he suffered ...." (emphasis in original). Plaintiff did not concede his claims for retaliation.

E. Conclusion

Because plaintiff has abandoned his claim for discrimination on the basis of national origin under Section 1981, and because the pretrial order contains no allegation of discrimination on the basis of color, race, or ethnicity under Section 1981,² we sustain Raytheon's motion to dismiss plaintiff's Section 1981 claim in its entirety.³

Plaintiff has also abandoned his claim for age discrimination under the ADEA. Accordingly, we sustain defendant's motion to dismiss plaintiff's ADEA discrimination claim.

Plaintiff's sole remaining claims are that Raytheon retaliated against him for engaging in protected opposition to unlawful activity, in violation of Title VII and the ADEA, and breached his contract of employment.

Factual Background

The following facts are uncontroverted, or where controverted, viewed in the light most favorable to plaintiff.

Plaintiff, who is Caucasian, is of Pakistani national origin. He was born on May 10, 1947, and his current age is 51. On November 1, 1993, plaintiff applied for employment with Raytheon Aircraft Company ("Raytheon"). He later received an interview with Richard Gaines. Plaintiff's approximate age and Pakistani national origin were obvious from the information he submitted, and nothing discriminatory occurred during the course of the interview. Gaines recommended that plaintiff be hired and on February 23, 1994, Raytheon offered plaintiff a position as a Senior Engineer at an annual salary of $48,000. This offer was $12,300 below the mid-point for Grade 9 engineers, but plaintiff's previous employer had paid him an annual salary of $47,500. Plaintiff's employment application had described his salary expectations as "negotiable" and he made no complaint about the proposed salary; in fact, Raytheon's offer was higher than any salary plaintiff had previously earned and he quickly accepted it without any attempt to negotiate a higher salary.⁴ On March 9, 1994, plaintiff began work as a Grade 9 Senior Engineer.

Quite a few engineers who were significantly older than plaintiff received higher salaries than plaintiff did. Since plaintiff started work, Raytheon has hired 26 engineers (Grade 9 Senior Engineer positions) who are plaintiff's age or older. Raytheon has also hired at least 11 foreign-born Grade 9 Senior Engineers who earned more than plaintiff. One of those engineers, Mohammad Safir Ulhaque, is also of Pakistani national origin. Like plaintiff, Ulhaque worked on the Hawker program. Ulhaque received good reviews, received a promotion within a year and a half of joining the company, and received good merit increases. Plaintiff and those foreign-born engineers received salaries that were higher than those of at least 11 native-born employees who worked in the same position.

Plaintiff initially worked on the King Air, an aircraft that Raytheon had manufactured since 1964. Plaintiff reported to Gaines, whom plaintiff believed to be "a very nice person." Gaines was a Designated Engineering Representative ("DER"), which authorized him to certify that engineering work was in compliance with and acceptable to the Federal Aviation Administration ("FAA"), the federal...