United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Plaintiff Alan Nordike brings this action against his employer, Defendant Verizon Business, Inc. ("Verizon"), for alleged retaliation in violation of Title VII of the Civil Rights Act of 1974, 42 U.S.C. § 2000e et seq ("Title VII"), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"). This matter is before the Court on Verizon's Motion for Summary Judgment (Doc. 37). After reviewing the parties' briefs, the Court invoked Fed.R.Civ.P. 56(f)(2) and directed Plaintiff to file a submission stating why summary judgment should not be granted to Verizon with respect to his putative claim of retaliatory hostile work environment, as well as to clarify whether he is also asserting claims for discrete acts of retaliation (Doc. 51). The parties have submitted their supplemental briefs (Docs. 52, 59), and the Court is ready to rule. For the reasons explained in detail below, the Court grants summary judgment in favor of Verizon on all of Plaintiff's claims.
I. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party." A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party.'"
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.
Finally, summary judgment is not a "disfavored procedural shortcut;" on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." In responding to a motion for summary judgment, "a party cannot rest 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."
II Uncontroverted Facts
The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiff, the non-moving party.
Plaintiff has been employed by Verizon since 2006 as a Senior Sales Engineer, also referred to as a Senior Solutions Architect. Sales Engineers ("SEs") support the account managers by providing product and technology expertise. Account managers are Verizon's sales personnel whose responsibility it is to develop sales opportunities. SEs are considered generalist or product specialists. Plaintiff is a specialized SE focusing on unified communications and collaboration ("UCC") products, including voice over internet protocol ("VOIP"), which is a technology that allows people to speak over an internet connection. Plaintiff's primary function is to provide VOIP support and expertise to the account managers and generalist SEs once a sales opportunity was established by the account manager and generalist. Plaintiff also makes outside sales calls to customers, including at times initial sales meetings with account managers.
In 2010 and 2011, Plaintiff supported account managers and their accounts located in Kansas, Missouri, and Arkansas, known as the tri-states region. Plaintiff was designated as a regional lead, which meant he was permitted to submit designs for field trials to a higher-level engineering group known as "Tier II, " for approval. Plaintiff's primary job duties of providing VOIP expertise while designated a regional lead were not altered, and there was no pay increase associated with the designation. In 2010, Plaintiff's manager was Brenda Kubicki, who was also located in the Overland Park, Kansas office.
Melin Investigation/Internal Complaint
In August 2010, Plaintiff was interviewed by Mandy Moses from Verizon's Human Resources Department in connection with an internal investigation of a complaint made by a co-worker, Curt Melin, alleging Melin was the victim of discrimination based on race, disability and retaliation (the "Melin investigation" or "Melin complaint"). Plaintiff submitted his own internal complaint of retaliation in September 2010, against his then-manager Kubicki ("Internal Complaint"). On September 20, 2010, Plaintiff sent an email to Moses stating that since his participation in the Melin investigation, he felt that he was being retaliated against. Moses responded to Plaintiff's email that same day, requesting a time to speak to Plaintiff that day about his concerns. After numerous attempts to reach him, Plaintiff responded to Moses's email on September 24, 2010, and provided the specifics of his allegations of retaliation: (1) Kubicki has been hostile to him "since the investigation"; (2) "prior to [Moses] calling [him] about the investigation, " Kubicki was having meetings offsite with other SEs, but he was not included; (3) Kubicki "questioned everything [he] had been working on, " specifically the Sunshine Energy, Nations Holdings, and ANG accounts, "which were all tagged to Melin"; (4) Kubicki "doubled" his workload; and (5) Kubicki said to him, "do YOU like your paycheck?... would you like the paycheck of a technician?" Moses also spoke with Plaintiff by telephone several days later.
In October 2010, Moses went to the Overland Park, Kansas office to conduct an investigation of Plaintiff's complaints. While there, she interviewed at least seven individuals regarding his allegations, including Kubicki. Moses subsequently telephoned Plaintiff and advised him that she was unable to "corroborate the situation [he] reported" after conducting a "thorough investigation" of his allegations of retaliation by Kubicki. Although no disciplinary action was taken, Verizon "took the opportunity to reinforce expectations" with Kubicki.
Changes in Verizon Structure/Organization
In January 2011, Verizon changed its focus on providing strategic services in the areas of UCC, IT, and security services. To better facilitate the sale of those opportunities, Verizon reorganized its SEs into separate "towers" for each focus area with specialized sales teams in each tower, with each tower assigned to a manager. This was a company-wide reorganization that resulted in all SE specialists, including UCC SEs, having their own managers. As a result of the reorganization, Ruben Robles was promoted to Solutions Engineering Manager, and became Plaintiff's manager. Robles, whose office is in Texas, oversees a group of UCC SEs (or Solution Architects). The decision to promote Robles was made by Brenda Tyre, the SE Director. At the time she made the decision, Tyre was not aware that Plaintiff had participated in an internal investigation or made an Internal Complaint. In January 2012, all SEs who reported to Robles were assigned the title of "service engineers, " and were instructed to bill their time to specific customers. This new title did not affect Plaintiff's compensation or pay.
In March 2012, Verizon again reorganized the sales engineering organization, and Jim Sloan became Plaintiff's manager. As part of the reorganization, Verizon realigned its geographic regions; Kansas and Missouri were made part of the Midwest region, while Arkansas was assigned to the Southern region. The reorganization affected all sales and SEs across the country. Plaintiff was aligned to the Midwest region, and was tied to those accounts for compensation purposes. After the reorganization, Plaintiff no longer supported accounts based in Arkansas, including the Walmart account. Another SE, Jeff Morrison, who lived in St. Louis and worked in Bentonville, Arkansas, remained on the Walmart account.
Verizon's Compensation Structure
From 2009 through 2012, Plaintiff received a base compensation and was eligible for commissions. During 2009, SEs were not individually assigned their own accounts for commission purposes, but were assigned to a branch, such that all SEs assigned to a branch were paid commissions based on all sales generated by that branch, including international "B-end" accounts. In Plaintiff's case, as well as four other SEs supervised by Kubicki, that was the tri-states region. In 2010, SEs were not individually assigned their own accounts for commissions purposes, but were aligned with sales managers in their region and all sales attributed to those sales managers, as well as the account executives who reported to those managers, were attributed to the assigned SEs. That year, Plaintiff and four other SEs were aligned with sales managers Chuck Long and Roger Peterson. As a result, the specific accounts Plaintiff was assigned to or removed from during 2009 through the present was irrelevant for commission purposes, and there was no additional compensation given to SEs for generating new accounts.
Beginning with the corporate reorganization in January 2011, SEs were paid commissions based on all sales of the particular product the SE supports within the SE's branch. Accordingly, beginning in 2011, Plaintiff was paid for all Networking and Communications sales, which includes products such as VOIP, within the tri-states region, regardless of what accounts he worked on. When Verizon again reorganized its sales and sales engineering organization in March 2012, Communications, Networking & Mobility ("CNM") SEs on a team were assigned to the same accounts and were paid on CNM sales made to those accounts. All Verizon CNM SEs, including Plaintiff, were paid commissions in this manner for the period of March through December 2012. Because Plaintiff was in the Midwest region for the latter part of 2012, his commissions were paid based on that region.
The 2009 through 2012 compensation plans for Verizon SEs require that any disputes related to commissions be submitted within sixty (60) days of the actual or expected day of payment of the commission, and provide that failure to submit a claim within the 60-day period will constitute a waiver of any claim.
Beginning in 2013, the compensation structure for SEs was changed to SEs receiving a base salary, with eligibility for a short-term incentive plan rather than commission. Under this plan, SEs were assigned to opportunities rather than accounts using a tool called Salesforce.com.
Relationship with Austin Kyser/Reassignment of Kansas City Accounts
In 2011, Plaintiff was assigned to work with Austin Kyser, a global solutions consultant for Verizon, who was known to be difficult to work with. Plaintiff and Kyser's respective managers, Robles and Shaun Trippel, were aware that Plaintiff and Kyser had difficulty working with each other. During a conference call, Kyser stated that he would never work with Plaintiff again, which was met with laughter by the call recipients. Robles then asked Plaintiff, "what do you want me to do about it?"
Robles regularly held one-on-one meetings with his team, including Plaintiff. Robles testified that he did not have any concerns about Plaintiff's expertise as an SE, and that he was a "top engineer" with the ability to create complex designs and present them to customers in a professional manner. Trippel, the sales manager for the tri-state region in 2011, raised concerns in mid-2011 about Plaintiff's availability, as did Kyser. Robles testified that Plaintiff was not in the office every day and his voicemail box was often full. Robles attributed these issues to Plaintiff's demanding workload, characterizing him as "one of the, if not the busiest folks on my team." Plaintiff testified that in 2010 and 2011, he was "swamped with too many-with a bunch of projects." Robles asked Plaintiff if he was too busy, and what he could do to help alleviate that so he could get some rest and take care of things that needed to be taken care of. Plaintiff responded that he had it "under control" and had a list of work that he was prioritizing. Robles's concerns about Plaintiff continued throughout the year, as Plaintiff continued to miss staff meetings and let his voicemail box get full. Robles continued to talk to Plaintiff about the issue, and took steps to assist him with his heavy workload. Verizon hired Kyle Baggett in September or October 2011, to primarily handle the St. Louis accounts. Rich Schuchmann, a generalist SE, was assigned some of the less complex VOIP projects for the Kansas City and St. Louis accounts, and assisted both Plaintiff and Baggett. Plaintiff testified that three or four months later, the accounts were "dumped back in my lap."
In February 2012, Kyser's new manager, Andrew Berg, emailed Trippel to ask about the ongoing conflict between Kyser and Plaintiff. Trippel stated in an email to Berg that he believed Plaintiff "is the issue." Berg then corresponded with HR representative Harnet Tsehaye about the situation, and whether there was any information he needed to know about Plaintiff that would help him manage Kyser. The email chain continues between HR representatives discussing a pending EEOC charge filed by Plaintiff. After speaking with Brenda Tyre, HR reported that Tyre had not received any complaints about Plaintiff's performance, and they had reached the conclusion that Kyser was likely motivated to make new complaints because he is reporting to a new manager, with "a new set of ears." HR speculated that Kyser was attempting to blame his performance issues on lack of support from his SE, and that the approach by Robles and Trippel was that Plaintiff and Kyser were two adults that needed to find a way to work together, and that she did not think there was any further action to be taken. The emails between the HR representatives were labeled "CONFIDENTIAL, " and Berg was not copied on the emails.
On October 24, 2011, Plaintiff filed a charge of discrimination (the "Charge") with the Equal Employment Opportunity Commission ("EEOC"), based on age, disability and retaliation. Although the parties stipulate to the filing of the Charge in the Pretrial Order, no copy is included in the record.
Complaints to Supervisors
Nordike sent an email to Robles and Tyre dated November 16, 2011, in which he complained that he was being scrutinized and unfairly blamed for the conflict between himself and Austin Kyser. Plaintiff also stated that he was concerned he was "continuously being brought into question and scrutinized on every opportunity I work on, " as well as "you continue to raise this perception of me not being available." Plaintiff also complains that Trippel has pulled him off his weekly priority meetings. Plaintiff requested support to "run interference on these distractions, " and stated that "I feel that I am being put in a compromised position for reasons unbeknounced [sic] to me."
Plaintiff sent a separate email to Robles and Tyre dated January 25, 2012, after Robles requested him to sign his 2012 Performance Agreement. Plaintiff stated that he believed his new role as a service engineer was a demotion, questioned whether he would still be supporting the Walmart account, and expressed concern that he was put into this new role as a direct result of his "outstanding complaints."
In February 2012, an ethics complaint was filed against Plaintiff for his work on an account with BNIM. The complaint was based on a report filed on February 27, 2012, by Mark Red, a contracts manager in Verizon's legal department, requesting information about a potential conflict of interest because Plaintiff declined to provide information about his relationship to his brother Mark Nordike, who worked for a company that was a potential Verizon customer. Verizon policies prohibit any employee from supervising Verizon's business relationship with any company that employs someone with whom the Verizon employee has a close personal or family relationship, and requires employees to disclose any potential conflicts of interest. Plaintiff did not disclose his family relationship with Mark Nordike to Verizon, and has no knowledge of any communications between Red and Robles or Kubecki regarding the ethics complaint. Plaintiff received a written warning for his failure to disclose his family relationship, but no other disciplinary action was taken against him.
Removal as Regional Lead
On October 4, 2012, Plaintiff received an email from Joe Alice, a Senior Consultant Solutions Architect/Developer, stating that the number of regional leads was being scaled back by Verizon nationwide, and that Plaintiff was being removed from his regional lead position. Sloan followed up with an email to Plaintiff explaining that there were twenty-four SE's in the company that were designated as leads, who were not submitting complete or accurate field trials, causing remediation by Tier II for "things that should have been caught, " and that whether the Tier II submissions go through him as a lead does not change his status as a Senior UCC SE. On October 5, 2012, Plaintiff emailed Sloan to express his belief that his removal as regional lead was a demotion and "a direct result of his outstanding complaints and indicates yet again, more retaliation against me." Sloan responded on October 8, stressing that Plaintiff had not been demoted and explaining that there was confusion about the lead title, as it is not a formal designation. Sloan ...