Tungol v. Certainteed Corp., CIV.A. 00-2511-JAR.

• Decision Date: 16 April 2002
• Docket Number: No. CIV.A. 00-2511-JAR.,CIV.A. 00-2511-JAR.
• Citation: 202 F.Supp.2d 1189
• Parties: Ted TUNGOL, Plaintiff, v. CERTAINTEED CORPORATION, Defendant.
• Court: U.S. District Court — District of Kansas

202 F.Supp.2d 1189

Ted TUNGOL, Plaintiff, v. CERTAINTEED CORPORATION, Defendant.

No. CIV.A. 00-2511-JAR.

United States District Court, D. Kansas.

April 16, 2002.

COPYRIGHT MATERIAL OMITTED

Karen R. Glickstein, Shughart, Thomson & Kilroy, P.C., W. James Foland, Patricia A. Mullins, Foland & Wickens, P.C., Kansas City, MO, for Plaintiff.

John R. Phillips, Julianne Popper, Blackwell Sanderss Peper Martin LLP, Kansas City, MO, for Defendant.

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

ROBINSON, District Judge.

Plaintiff Ted Tungol, a fifty-six-year-old Asian male of Filipino national origin, filed suit against defendant CertainTeed, his current employer, alleging discrimination on the basis of race and national origin in violation of Title VII, discrimination on the basis of race in violation of 42 U.S.C. sec.1981, discrimination on the basis of age in violation of the ADEA and failure to promote and retaliation in violation of Title VII, sec.1981 and the ADEA. This matter is presently before the Court on defendant's motion for summary judgment (Doc. 42). As set forth in a telephone conference conducted April 11, 2002, CertainTeed's motion is granted in part and denied in part. The purpose of this memorandum order is to memorialize the rulings made by the court during the telephone conference.

I. Summary Judgment Standard

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 of material fact and that the moving party is entitled to judgment as a matter of law."¹ The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party.² Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."³

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.⁴ Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial.⁵ "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."⁶ Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.⁷ The court must consider the record in the light most favorable to the nonmoving party.⁸

II. Factual Background

The Court's understanding of the facts has been complicated by the manner in which plaintiff has presented his opposition to CertainTeed's motion for summary judgment. D.Kan. Rule 56.1 provides in relevant part:

A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relied, and, if applicable, shall state the number of movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purposes of summary judgment unless specifically controverted by the statement of the opposing party.

Plaintiff has not consistently complied with Rule 56.1. Plaintiff does not consistently refer with particularity to those portions of the record upon which he relies. In responding to CertainTeed's statement of undisputed facts, he does not first state CertainTeed's numbered paragraph, then his response, to facilitate comparison. Further, plaintiff does not specifically set forth in detail the reasons why he cannot truthfully admit or deny particular matters, and he does not fairly meet the substance of the matters asserted.

In finding that the following facts are undisputed, the Court disregards all facts not set forth in compliance with D. Kan. Rule 56.1. The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to plaintiff's case. Immaterial facts and facts not properly supported by the record are omitted.

Plaintiff, a fifty-six year old Asian male of Filipino national origin, has worked for CertainTeed for 23 years. Plaintiff was hired as a Design Draftsman in 1979 and was promoted several times: to designer in 1980; to the positions of Project Engineer I and II in 1982 and 1984, respectively; and to Senior Project Engineer in 1994. Plaintiff has been in his current position as a Senior Process Engineer since his transfer effective May 1, 1999.

As a Senior Project Engineer, Plaintiff was responsible for engineering design and management of projects at CertainTeed's Kansas City plant. As a Senior Process Engineer, plaintiff is responsible for making sure certain processes in the plant are running efficiently.

CertainTeed's performance evaluation rating scale is as follows: "1"—needs improvement; "2"—learning; "3"—meets expectations; "4"—exceeds expectations; "5"—outstanding. A "3" rating is appropriate for an employee "who handles the position responsibilities at a level beyond the expectations of the job requirements. Solid, steady performer who needs minimal supervision... " A "2" rating is appropriate for an employee who "[is] not yet fully meeting the job requirements, who [is] relatively new in the position and [is] still in the leaning process requiring supervision. This category may also be used for the employee who may not quite fully have met the expectations of the position this past year."

In February 1997, plaintiff received his evaluation for his 1996 work performance from his supervisor, Dan Fritts, who had recommended plaintiff for promotion to Senior Project Engineer in 1994. The review was also signed by Plant Manager Jim Zalaznik. The 1996 review gave plaintiff an overall rating of "3" or "meets expectations." In the review, Fritts stated that plaintiff needed to show more initiative in identifying problems; to work harder at meeting project schedules and focus on deadlines; to work closer with the other engineers on common projects; and to communicate more often in meetings as well as with customers.

Plaintiff received an overall rating of "3" in February 1998 for his 1997 work performance. Eric Schramm was plaintiff's supervisor. The review had similar comments on plaintiff's performance, including the need to work on being more assertive in his oral communication in meetings and with contractors, and the need to work on meeting schedules set for projects. Plaintiff received a 3% salary increase based on his 1997 review.

In 1996, CertainTeed approved a $250 million capital investment in the "K-21 Project", which added a new fiberglass production line, the largest in North America. Construction on the K-21 line began in October 1996, and was divided into interdependent phases. K-21 changed the environment of the plant and all employees and the facility were "in the spotlight." Plaintiff's first K-21 project was overseeing the K-11 line's Asphalt System Replacement.

In October 1998, plaintiff received a quarterly review from Eric Schramm that raised concerns about plaintiff's K-21 projects. The review stated that plaintiff needed to take greater care in defining the details and operational impact of his project prior to developing a scope, and that he should be more aggressive with project management and provide his contacts with a clear definition of what their tasks were.

In February of 1999, plaintiff received a "2" or "learning" rating from his supervisor Eric Schramm on his annual performance review for his 1998 work performance. The review noted that plaintiff needed to take time when giving oral directions to peers and contractors and to make sure that all parties understood his verbal directions; that plaintiff needed to concentrate on meeting schedules and documenting them in writing; that plaintiff needed to be more proactive in searching out problems; that plaintiff's main K-21 project was over budget and had storage capacity problems; that plaintiff seldom contributed to group discussions; and that contractors had problems following plaintiff's directions, resulting in many field changes or corrections. Plaintiff received a lump sum payment equal to 2% of his annual salary.

Plaintiff took issue with the 1998 review and sent a detailed memo to Eric Schramm and other members of management dated March 26, 1999, alleging that his 1998 performance review was based on national origin discrimination. Schramm responded to plaintiff's memo on July 15, 1999, denying that the review was motivated by prejudice based on plaintiff's national origin.

In early 1999, it was decided plaintiff should be transferred to process engineering because he was not meeting the expectations of Eric Schramm and because he had knowledge of the mechanical process used in the plant. The three remaining project engineers were Caucasian, American-born males over the age of 40.

Jim Zalaznik communicated the decision to transfer plaintiff to the Senior Process Engineer position in a memo to his management team dated March 1, 1999. The memo stated that management would not inform plaintiff of the transfer until completion of the K-21 project.

Effective May 1, 1999, plaintiff was transferred to a process engineer position and his title was changed to Senior Process Engineer. Plaintiff's salary and benefits did not change as a result. Brett...