Short v. Mando American Corp.

• Decision Date: 01 August 2011
• Docket Number: Case No. 3:10–cv–350–MEF.
• Citation: 805 F.Supp.2d 1246
• Parties: Claude R. SHORT, Plaintiff, v. MANDO AMERICAN CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Alabama

805 F.Supp.2d 1246

Claude R. SHORT, Plaintiff,

v.MANDO AMERICAN CORPORATION, Defendant.

Case No. 3:10–cv–350–MEF.

United States District Court,M.D. Alabama,Eastern Division.

Aug. 1, 2011.

Alicia Kay Haynes, Haynes & Haynes, PC, Birmingham, AL, for Plaintiff.

Kathryn Morris Willis, Marcel Louis Debruge, Burr & Forman LLP, Frank McRight, Frank McRight PC, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

MARK E. FULLER, District Judge.

The instant action arises from an employment relationship between Plaintiff Claude R. Short (“Short”) and Defendant Mando American Corporation (“MAC”). On April 22, 2010, Short filed suit against MAC, alleging discrimination based on race and national origin, harassment based on age and race, retaliation, and several state law torts. (Doc. # 1).¹ This case is now before the Court on five motions, which are as follows:

(1) MAC's motion for summary judgment, (Doc. # 43), filed on April 22, 2011;

(2) Short's motion for a protective order and motion to strike MAC's motion for summary judgment, (Doc. # 49), filed on May 2, 2011;

(3) MAC's motion to strike portions of Short's evidentiary submission in opposition to MAC's motion for summary judgment, (Doc. # 59), filed on May 25, 2011;

(4) Short's motion to strike the affidavit of Jerry Rolison, (Doc. # 63), filed on June 16, 2011; and

(5) Short's motion to strike the affidavit of Taeyoung Kwak, (Doc. # 64), filed on June 16, 2011.

JURISDICTION AND VENUE

This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 (federal law) and 1367(a) (supplemental jurisdiction). Venue is proper in this district pursuant to § 1391(b). The parties do not dispute personal jurisdiction.

FACTS AND PROCEDURAL HISTORY

I. FactsA. The Parties Generally

Short is a white male, originating from the United States. He is a resident of Bumpus Mills, Tennessee. Prior to working for MAC, Short worked for General Motors (“GM”) for thirty-four years.

Although it is unclear in which state MAC is incorporated, the parties agree that MAC was incorporated in the United States in January of 1996. MAC is a wholly-owned subsidiary of Mando Corporation, which is incorporated and existing under the laws of the Republic of Korea. At all relevant times, MAC was doing business in Lee County, Alabama. MAC and Korean subsidiary corporations of Mando Corporation are in the business of manufacturing, assembling, and selling automotive parts and assemblies to customers in the United States and other world-wide markets. In 2004, MAC commenced operations at its plant in Opelika, Alabama, creating products used in the manufacture of automobiles. MAC's primary customers are the “Big Three” automobile manufacturers in the United States (GM, Chrysler, and Ford) located in Detroit, Michigan, Hyundai Motors Manufacturing located in Montgomery, Alabama, and Kia Motors Manufacturing located in West Point, Georgia. MAC also has a facility in Plymouth, Michigan, near Detroit.

MAC has two types of employees at its Opelika plant. “Regular” employees reside permanently in the United States and are hired by and work directly for MAC. Regular employees are predominately American in origin. Regular employees are employees only of MAC. Foreign Service, or “expatriate”, employees (“FSEs”) are employees of Mando Corporation, MAC's parent, sent from Korea to work in the United States for three to five years. All FSEs are citizens of Korea. Mando Corporation assigns FSEs to their positions so that its Korean employees can learn about overseas operations, educate subsidiaries about its business policies and methods, report on activities of the subsidiary to the parent corporation's management, and facilitate communications between the parent corporation, its Korean subsidiaries, MAC, and MAC's customers.

B. Short's Employment as Quality Director at MAC

For approximately one year after MAC began operations at its Opelika plant in 2004, Nosuk Ha (“Ha”), a Korean citizen employed as an FSE by Mando Corporation, was the Quality Manager. Prior to this time, Ha had worked as a Quality Director in MAC's Plymouth, Michigan facility. Consequently, his five-year entitlement to work in the United States was due to expire in 2008.

In July of 2006, MAC hired Short to replace Ha as the Quality Director at the Opelika plant with an annual salary of $125,000. MAC hired Short because it believed that his English language skills and past work experience and relationships with the Big Three automotive companies would improve customer relations and quality control. MAC also believed that Short's experience as a Supplier Quality Supervisor and consultant with GM would help establish strong working relationships with GM and the other Big Three companies. Initially, Short shared duties with Ha as Quality Director. However, soon after Short began working for MAC, Taeyoung Kwak (“Kwak”) joined MAC as President. Kwak originated from Korea but became a naturalized citizen of the United States. Kwak shifted Ha to another position. According to Short, Ha was responsible for supervising him.

As Quality Director, Short was “responsible for the total quality system within the plant, supplier quality and quality to deal with customers, [made] sure they [had] a good environment, [made] sure the employees [were] trained, [and] put the proper people in the proper place.” (Doc. # 45 Ex. 3, Short's Dep. 38:15–20). Kwak testified that when he became MAC's President at the end of 2006, there was “no problem” with Short's performance of his duties. (Doc. # 46 Ex. 1, Kwak Dep. 94:7–10). On January 1, 2008, Kwak gave Short a $10,000 per-year (8%) increase in salary, although the normal increase that year was 4% for other managerial employees.

i. The Charge–Back Issue Generally

However, MAC contends that Short performed only some of his duties well. MAC concedes that Short performed well in his dealings with the Big Three American automobile companies, but alleges that he “was not effective in his dealings with suppliers, the majority of which were Korean- managed subsidiaries of Mando Corporation in Korea and China.” (Doc. # 44, at 6). Specifically, MAC contends that Short was ineffective in implementing a new practice of “charge-backs” to its suppliers for expenses incurred when component parts purchased from suppliers did not conform to purchase specifications. MAC alleges that Short, as Quality Director, was responsible for establishing and implementing processes that identified and documented such nonconforming components, communicating such identification and documentation to responsible suppliers with MAC's claims for reimbursement, and following up with suppliers, as necessary, to ensure that such charge-backs were honored by the suppliers.

Short disagrees, alleging that the Quality Department was separate and distinct from the Accounting, Planning, and Purchasing Departments such that he “did not have sole or even significant responsibility for any charge-back issues.” (Doc. # 55, at 11). Short testified in his deposition as follows:

The mounting charge back comes from shipping defective parts, so I had no responsibility in making those. I had responsibility for trying to resolve that. And when I say that, I'm referring to trying to get support from the parent company to handle their quality issues and to sort their own stuff.

(Doc. # 45 Ex. 3, Short Dep. 95:3–10). Short alleges that he requested that someone from Mando Corporation come to Alabama to handle Mando Corporation's quality issues, but that his request “fell on deaf ears.” ( Id. 95:14–18). He was aware of the tensions that developed between Mando Corporation and MAC and its subsidiary corporations over the charge-back issue and knew that it was something to be concerned about from a business standpoint. (Doc. # 45 Ex. 3, Short Dep. 92:15–18, 99:10–15). Short further testified that he checked into the charge-back issue and “put [the documentation] into accounting to do the charge-backs” but that he told Kwak that he could not “get a report out of ... accounting.” ( Id. 92:15–20). Short believed that he “had a responsibility to provide the data, submit it to accounting, and [that] it was accounting's responsibility to get the money back.” ( Id. 99:1–4).

Kwak testified in his deposition that Short was to submit the documentation for the charge-backs to accounting so that accounting could collect the funds, but he also testified that Short “need[ed] to follow through” with accounting or the supplier to make sure MAC was getting paid. (Doc. # 46 Ex. 1, Kwak Dep. 120:16–121:7). However, in his affidavit, Kwak stated that Short was responsible for documenting, communicating, and following up on charge-backs with the suppliers, not accounting. (Doc. # 45 Ex. 1, Kwak Aff. ¶ 18 (“As MAC's Quality Director, ... Short was responsible for establishing and implementing processes that identified and documented such nonconformities, communicating such identification and documentation to suppliers with MAC's claims for reimbursement to responsible suppliers, and following up with suppliers, as necessary, to insure that such claims, or “charge-backs,” were honored by suppliers.”) (emphasis added)).

ii. Short's Alleged Difficulties with Suppliers

Short testified that he does not speak Korean, nor did he attempt to learn how to speak or understand Korean. (Doc. # 45 Ex. 3, Short Dep. 62:6–7, 64:12–14). He further stated that “in staff meetings and business meetings, the Koreans would speak Korean, knowing that [the American employees] did not understand it.” ( Id. 62:12–14). Thus, Short felt that he was at a disadvantage in making presentations when in Korea using an interpreter. ( Id. 67:1–6; see also Doc. # 47 Ex. 5, Pl.'s Ans. to Interrogatories at 16).

In July of 2007, Kwak moved Jason Burton, the employee responsible for supplier quality, from Short's Quality Department to the Purchasing Department, which was headed by a Korean FSE named ...