PHILIP A. BRIMMER, United States District Judge
This matter is before the Court on Defendant's Motion for Summary Judgment [Docket No. 34] filed by defendant Lockheed Martin Corporation ("LMC"). The Court has subject matter jurisdiction over plaintiff Dr. Muneeb Chawla's Title VII claims pursuant to 28 U.S.C. § 1331 and over plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
LMC designs and manufactures sophisticated technology systems for use in the space and defense industries. Docket No. 34 at 2, ¶ 1. Dr. Chawla began working for LMC as a Level 2 Electrical Engineer upon his graduation from college. Id. at 2, ¶ 2. Dr. Chawla was hired on August 19, 2004. Docket No. 34-2 at 6, p. 62:15-24. He completed his Ph.D. in 2009. Id. at 3, ¶ 12. Dr. Chawla is half Pakistani and half Indian and identifies as a Muslim. Id. at 2, ¶ 3. He did not discuss his religion with his co-workers. Id.
For each of its employees, LMC conducts a Performance Assessment and Development Review ("PADR") at the end of each year, in which supervisors provide feedback regarding work performance. Id. at 2, ¶ 4; Docket No. 34-2 at 5, p. 59:15-21. Employees can receive one of five ratings: exceptional contributor, high contributor, successful contributor, basic contributor, or unsatisfactory. Docket No. 34 at 2, ¶ 4; see, e.g., Docket No. 34-6.
Employees assigned to special programs
A manager seeking to discipline an employee will generally file a complaint with human resources ("HR"), who will then investigate the complaint. See, e.g., Docket No. 41-14. Once an investigation is complete, disciplinary action is subject to multiple levels of review. The Administrative Review Committee ("ARC") reviews "cases involving allegations of misconduct... excluding ... minor infractions of policy such as traffic citations and attendance-related violations for which the discipline is less than a suspension...." Docket No. 36-2 at 5. The ARC has the authority to make final decisions for those infractions where the discipline is verbal or written counseling, but makes recommendations to the Executive Review Committee ("ERC") for all those cases where the ARC determines suspension, demotion, or termination of employment is appropriate and for cases involving allegations to be reviewed only by the ERC, as discussed below. Id. The ERC makes the final disciplinary decision with respect to cases involving, as relevant here, "mischarging or miscoding of work time," unlawful discrimination, harassment, or other misconduct involving violation of LMC's equal employment opportunity policies, and any misconduct where suspension, demotion, or termination has been recommended by the ARC. Id. at 5. An employee receiving discipline from the ERC may appeal the decision to the Executive Appeal Committee ("EAC"), which will review the employee's grounds for appeal and whether:
Id. at 6. Per LMC policy, the ARC must ensure that the accused employee has had the opportunity to provide his or her account of the events to an investigator or in a written statement. Id. at 5. However, the accused employee is not permitted to personally appear before the ARC, ERC, or EAC. Id. at 5-6.
Dr. Chawla's 2004 PADR was completed by Gary Gardner. Docket No. 34-5 at 1. Mr. Gardner rated Dr. Chawla as a basic contributor. Id. In 2005, Dr. Chawla's supervisor, Mark Evans, rated Dr. Chawla as a successful contributor. Docket No. 34-6 at 1. In 2006, the work area Dr. Chawla was involved in was subcontracted out, which resulted in Dr. Chawla being placed in LMC's layoff pool. Docket No. 34 at 2, ¶ 7. Rodger Nichols selected Dr. Chawla to work in Military Support Programs
In June or July of 2009, Bradley Hooker became Dr. Chawla's direct supervisor and promoted Dr. Chawla to Systems Engineer Staff, a Level 4 position that resulted in a pay raise. Docket No. 34 at 3, ¶ 12; Docket No. 34-2 at 12, p. 86:3-4. In Dr. Chawla's 2009 and 2010 PADRs, Mr. Hooker rated Dr. Chawla as a successful contributor and also listed areas in which Dr. Chawla could improve. Docket No. 35; Docket No. 35-1 at 1. Mr. Hooker testified that, at the end of 2010, Dr. Chawla's performance deteriorated in such a way that Mr. Hooker contacted HR asking to retroactively change Dr. Chawla's PADR rating to "basic contributor," but was unsuccessful. Docket No. 34-12 at 9, pp. 174:20-175:15. On April 26, 2011, Mr. Hooker placed Dr. Chawla on a PIP (the "2011 PIP") because of dissatisfaction with Dr. Chawla's performance, including a customer complaint that Dr. Chawla failed to attend an off-site customer meeting and a customer complaint about "verification reports." Id. at 1, pp. 119:20-120:11. Mr. Nichols signed the 2011 PIP, along with Mr. Hooker, Dr. Chawla, and Jennifer Kaplan from HR. Mr. Nichols testified that Dr. Chawla was placed on the 2011 PIP because of work-related errors and "relationship problems with a large percentage of the people he worked with." Docket No. 35-2 at 2; Docket No. 34-7 at 8, pp. 59:25-60:4. The 2011 PIP contained five separate objectives, all of which Dr. Chawla was required under the PIP to complete by July 26, 2011. Docket No. 35-2 at 1-2. Mr. Hooker and Dr. Chawla regularly discussed Dr. Chawla's progress. Docket No. 34 at 4, ¶ 18. Dr. Chawla was rated unsuccessful on one objective, successful on one objective, and marginal on three objectives, Docket No. 41-12; however, the parties dispute whether this constitutes a successful completion of the 2011 PIP. Dr. Chawla stated, "I believe I successfully completed the [2011 PIP] based on my efforts." Docket No. 41-2 at 3, ¶ 24. Mr. Nichols and Mr. Hooker testified that, in order to be removed from a PIP, an employee must complete all objectives, which Dr. Chawla failed to do. Docket No. 34-7 at 9, p. 66:3-18; Docket No. 34-12, at 4, pp. 133:18-134:8. Mr. Hooker testified that Mr. Hooker did not formally close the 2011 PIP with Dr. Chawla. Docket No. 37-8 at 6.
In 2011, Dr. Chawla was the subject of a LMC investigation for mischarging his time. In general, LMC employees' time is charged directly to LMC's customers. Docket No. 34 at 5, ¶ 23. MSP employees had classified computers at their workstations,
The timing of the mischarging allegations and corresponding investigation is in dispute. Dr. Chawla argues that Mr. Hooker initiated the mischarging investigation "in response to and in retaliation for my travel plans to visit family in Qatar and Pakistan." Docket No. 41-2 at 3, ¶ 22. On March 24, 2011, Dr. Chawla submitted to LMC security his Qatar and Pakistan vacation plans. Docket No. 41-26; Docket No. 41-8 at 4, p. 139:7-25. It is undisputed that, on March 24, 2011, Mr. Hooker submitted to HR a formal Employee Complaint Intake Questionnaire, where Mr. Hooker stated:
Docket No. 41-14. Although LMC managers are generally sent an email notifying them of pending requests for travel, Dr. Chawla does not identify any evidence indicating how quickly a manager receives such notification after an employee submits a travel request. Docket No. 41-8 at 4-5, p. 139:14-140:5 ("Q. When does the manager receive the e-mail after the Fast Track? Right away? A. I don't know."). LMC disputes that Mr. Hooker's formal complaint was the first instance in which Mr. Hooker raised mischarging allegations with HR. Mr. Hooker testified that, prior to February 2011, he observed Dr. Chawla using unclassified computers in other parts of the building and received complaints that Dr. Chawla was wasting time by socializing with co-workers. Docket No. 34-11 at 5, pp. 33:21-34:21. Mr. Hooker testified that these things caused him to be concerned that Dr. Chawla might be mischarging his time, concerns which he reported to HR. Id. at 5, p. 35:13-24. LMC argues that Mr. Hooker first took his concerns to HR in February 2011 and cites Mr. Hooker's deposition testimony in support of its claim. Docket No. 42 at 6, ¶ 98 (citing Docket No. 42-2 at 3, p. 40:2-5 (Q: Okay. And when did you speak with Ms. Graves? What date, approximately? A: It would have been triggered by that same February 3rd, 2011 e-mail....")).
Mr. Mauro's investigation findings were referred to the ARC, which was composed of Robin Valore, HR director, June Taylor, senior manager of the equal opportunities program, and Mr. Nichols, the manager representing the MSP. Docket No. 34 at 6. Because Mr. Hooker was the complaining party, per LMC policy, he was not permitted to participate in the ARC's decision. Docket No. 34-11 at 7, pp. 50:23-51:6 ("the reason we do that is to ensure that it's fair and it's not based on, for instance, a bias of mine"). The ARC substantiated the allegations and recommended termination. Docket No. 36-3 at 1.
On December 16, 2011, Dr. Chawla was rated as a basic contributor on his 2011 PADR. Docket No. 37-5 at 1-2. Mr. Hooker testified that he and Mr. Nichols provided the rating. Docket No. 34-12 at 10-11, pp. 196:25-197:3. The PADR stated, in part,
Muneeb has struggled to deliver acceptable performance this year.
Docket No. 37-5 at 1. The PADR also stated that Dr. Chawla was "marginally successful" in completing the 2011 PIP. Id.
HR suggested that Dr. Chawla be issued a second performance improvement plan (the "2012 PIP"), which Mr. Hooker decided to do. Docket No. 34 at 9, ¶ 51; Docket No. 34-12 at 4-5, pp. 134:17-137:18. As noted above, basic contributors in special programs are required to be put on PIPs,
Docket No. 41-9 at 11, p. 116:8-23.
Mr. Hooker subsequently transitioned into a different management role and, on January 28, 2012, Stacy Garfield replaced Mr. Hooker as Dr. Chawla's direct supervisor. Docket No. 34 at 9, ¶ 50. The record indicates that Mr. Hooker, Mr. Nichols, and Ms. Garfield had some role in drafting the 2012 PIP. Docket No. 34-12 at 4-5, pp. 134:17-137:18; Docket No. 34-7 at 10, p. 71:13-15; Docket No. 37-8 at 6. On February 10, 2012, Ms. Garfield delivered the 2012 PIP to Dr. Chawla. Docket No. 34 at 9, ¶ 51. The 2012 PIP contained six objectives and was scheduled to conclude on May 10, 2012. Docket No. 37-7. Ms. Garfield and Dr. Chawla met biweekly to discuss progress on the 2012 PIP, and Dr. Chawla understood that failure to complete the 2012 PIP could result in termination. Docket No. 34 at 10, ¶¶ 52, 53.
Ms. Garfield determined that Dr. Chawla was unsuccessful in completing the 2012 PIP, testifying that Dr. Chawla's "interactions with co-workers and customers was still very negative and disruptive, and completion of some of the tasks was not to the level of expectations for his labor grade." Docket No. 37-6 at 6, p. 41:6-9. Ms. Garfield provided her assessment regarding the 2012 PIP to HR, id. at 12, p. 80:16-19, expressing concerns that Dr. Chawla's working relationship with co-workers was "broken and beyond repair," that Dr. Chawla's relationship with customers was such that "he can have no further interactions with the PLC Customer," and recommended that Dr. Chawla be demoted to a "labor grade 2 engineer." Docket No. 41-22 at 1-3.
After receiving Ms. Garfield's assessment, Jennifer Kaplan, an HR staff member, conducted an investigation. Docket No. 37-8. Ms. Kaplan investigated the allegations of deficient job performance due to Dr. Chawla's basic contributor rating in 2011, failure to complete the 2012 PIP between February 10 and May 10, 2012, and a continued lack of performance after May 10, 2012. Docket No. 37-8 at 3. The report contained information about the mischarging investigation, previous PADRs, and the 2011 and 2012 PIPs. Id. at 10. The report noted that Ms. Garfield
Ms. Kaplan's report was forwarded to the ARC, which was composed of Ms. Valore, Helen Finneran, HR director, and Buddy Hayes, organization manager. Docket No. 34 at 13, ¶ 73. The ARC recommended terminating Dr. Chawla's employment. Docket No. 39-3. The ARC's recommendation was forwarded to the ERC, which was composed of Mr. Pierce and Rick Facchinello, vice president of finance. Id. Dr. Chawla does not identify any evidence that would reasonably suggest that Mr. Pierce or Mr. Facchinello were aware of Dr. Chawla's national origin, religion, or prior complaints of harassment and discrimination. Docket No. 34 at 13, ¶ 76; Docket No. 41 at 12, ¶ 76; cf. Docket No. 39-6 at 2, ¶ 5 ("I never met Dr. Chawla and do not know his race, ethnicity, national origin, religion, or whether he complained of discrimination or retaliation at the time while he worked at LMC."); Docket No. 34-4 at 7, pp. 213:24-214:7 ("Q. As of July 25, 2012, do you have any reason to believe either Mr. Pierce or Mr. Fachinello knew that you were Muslim? A.... I would say no to the entire chain. Q. Okay. So the same for national origin and race? A. Correct."). The ERC concurred with the ARC's recommendation. Docket No. 39-3. On July 26, 2012, LMC notified Dr. Chawla that his employment was terminated as a result of "Poor Performance in violation of N1.5.1-T2-HRMgt-I.3-D, Conduct and Disciplinary Action for Salaried Employees." Docket No. 39-7. Mr. Nichols testified that Dr. Chawla was terminated "[f]or inadequate performance and not performing — not successfully completing the two PIPs." Docket No. 34-7 at 13, p. 97:17-19.
On August 1, 2012, Dr. Chawla appealed his termination to the EAC, arguing that the factual basis for his termination was unfounded and that his termination was in retaliation for his harassment complaints and Equal Employment Opportunity Commission ("EEOC") charge of discrimination. Docket No. 39-8. The EAC was composed of Mr. Castorena and Mr. Regan, vice president of business operations. The EAC concluded that, "[a]fter a thorough review of the records, including Dr. Chawla's written appeal, the Executive Appeal Committee agrees with the determination of the ARC and ERC, and therefore denies Dr. Chawla's appeal." Docket No. 39-3. LMC did not fill Dr. Chawla's position after his employment was terminated — Ms. Garfield testified that current employees were able to pick up Dr. Chawla's work and complete it successfully. Docket No. 37-6 at 2, p. 15:12-14.
In an August 2, 2011 email to Mr. Mauro, sent at 10:17 a.m., Dr. Chawla made his first complaint of discrimination. Docket No. 34 at 8, ¶¶ 44-46; Docket No. 34-3 at 11, p. 148:13-17.
Docket No. 37. Mr. Mauro apprised HR of these concerns, and Whitney Bealor began an investigation. Docket No. 34 at 8, ¶¶ 46-47. As part of the investigation, on September 22, 2011, Dr. Chawla submitted an additional written statement alleging that Mr. Hooker discriminated against him due to Dr. Chawla's national origin and religion. Docket No. 37-4 at 13. This written statement reiterated the complaints made in Dr. Chawla's August 2, 2011 email and was substantially identical to the argument Dr. Chawla made in appealing discipline from the mischarging investigation. Compare id., with Docket No. 37, with Docket No. 36-7.
On November 17, 2011, Ms. Bealor issued an investigation report. Docket No. 37-2. The investigation determined that the decision to place Dr. Chawla on the 2011 PIP was based upon Dr. Chawla's performance and not his national origin or ancestry. Id. at 8. Investigation of the second allegation was as follows: At the end of June 2011, after returning from his vacation to Pakistan and Qatar, Dr. Chawla had a temporary ID badge containing his picture. Dr. Chawla claims that co-worker Jeff Barron told him that the badge picture looked like a picture of a terrorist. Mr. Barron could not recall ever calling Dr. Chawla a terrorist. Dr.
On February 14, 2012, Dr. Chawla complained of discrimination by Mr. Hooker and multiple co-workers. On February 15, 2012, Ms. Campbell and Gary Benson, an outside investigator, were assigned to investigate Dr. Chawla's complaint. Docket No. 41 at 15, ¶ 101; Docket No. 38 at 3. Although Ms. Campbell stated that LMC conducts investigations within thirty days of an initial complaint, Ms. Campbell did not begin investigating Dr. Chawla's complaints for six weeks. Docket No. 41 at 16, ¶ 103. Ms. Campbell claims that she explained to Dr. Chawla that, because of a special assignment, she would be unable to begin an investigation for five to six weeks. Docket No. 42-3 at 2, p. 25:12-19.
On May 29, 2012, Ms. Campbell and Mr. Benson issued an investigation report addressing the following allegations. First, Dr. Chawla alleged that Mr. Hooker discriminated and retaliated against him by placing him on the 2011 PIP and giving him a basic contributor rating on the 2011 PADR. Docket No. 38 at 5. The investigation determined that Mr. Hooker was not aware of Dr. Chawla's national origin prior to recommending the 2011 PIP, that Dr. Chawla's 2011 PIP and 2011 PADR were supported by specific examples and, in some instances, by Dr. Chawla's own admissions, and that Mr. Hooker's assessments
Second, Dr. Chawla alleged that he was harassed by Mr. Hooker when, on November 22, 2011, Mr. Hooker sent an email to the work group, including Dr. Chawla, which contained a cartoon referencing the "Pakistani government's failure to apprehend Osama Bin Laden." Docket No. 38 at 5; see also Docket No. 38-6 at 3. Dr. Chawla explained that he was offended because "just weeks after I made my plans to go on vacation to Qatar and Pakistan, they did find Osama Bin Laden in Pakistan. And me being placed on a Performance Improvement Plan, I felt like what this was communicating to me is that at Lockheed Martin, all I wanted was a job like Bin Laden had in Pakistan, where no one knew he existed there." Docket No. 34-3 at 14, p. 169:15-22. Mr. Hooker admitted to the investigator that he could understand how Dr. Chawla may have taken offense and further that the cartoon was inappropriate or insensitive to Dr. Chawla's national origin or religion. Docket No. 38 at 14. The investigation determined that the allegations related to Mr. Hooker's email were substantiated, Docket No. 38 at 14, and Mr. Hooker was given a verbal reprimand by the ERC. Docket No. 38-7 at 1.
Third, Dr. Chawla alleged that, in the summer of 2001, Mr. Hooker "asked me which `part' of me was Pakistani, further stating that my Pakistani and Indian ethnic halves, `don't like each other,' and `must be in conflict with one another.'" Docket No. 41-2 at 2, ¶ 11. However, Dr. Chawla did not tell Mr. Hooker that such a comment was offensive to him. Docket No. 38 at 13. Mr. Hooker admitted that he has inquired about Dr. Chawla's ancestry and was genuinely curious if Dr. Chawla's Indian and Pakistani background created any tension. Docket No. 38 at 13. In light of the fact that Dr. Chawla did not explain that this question offended him, the investigation found that Mr. Hooker was not given an opportunity to apologize and found Mr. Hooker's explanation for the question reasonable. Id. at 14. The investigation found the allegation unsubstantiated. Id.
Dr. Chawla also complained that three co-workers made harassing comments based upon Dr. Chawla's national origin/ancestry. Docket No. 34 at 11-12, ¶ 66. Dr. Chawla claimed that co-worker Rick Keel made harassing comments including calling Dr. Chawla a "terrorist." Docket No. 38 at 5. The investigation determined that, in the absence of a witness corroborating Dr. Chawla's allegation, Mr. Keel's denial was credible and Dr. Chawla's allegations unsubstantiated. Id. at 15. Dr. Chawla claimed that co-worker Ted Wolk made harassing comments including calling Dr. Chawla "Muneeb Quaddafi." Id. at 5. The investigation determined that, although Mr. Wolk's written statement cast some doubt as to whether he made the claimed statement, no witnesses corroborated Dr. Chawla's account and the allegation was therefore unsubstantiated. Id. at 15. Dr. Chawla accused co-worker Glen Olsen of making harassing comments including referring to Dr. Chawla as a "security risk." Id. at 5. The investigation found unsubstantiated the allegation that such comments were related to Dr. Chawla's national origin. Id. at 15. The ARC concurred in all three assessments. Docket No. 39 at 1-3. The ERC did not review the ARC's decision, Docket No. 41 at 17, ¶ 110, which LMC claims the ERC was not required to do because the ARC did not substantiate the allegations
On April 23, 2012 and May 2, 2012, Dr. Chawla contacted Ms. Campbell regarding the conduct of co-worker Larry Espelage. Docket No. 41-29; Docket No. 41-30. Ms. Campbell testified that she did not combine these complaints with those Dr. Chawla made previously because "I was in the middle of investigating the other report at the same time I was investigating this one." Docket No. 41-27 at 9, p. 56:9-12. On May 15, 2012, Ms. Campbell issued a report addressing the two incidents:
Docket No. 39-1 at 4. Mr. Espelage admitted to making both statements and Dr. Chawla's allegations were substantiated. Id. at 6. The ERC suspended Mr. Espelage for one week without pay. Docket No. 39-4.
On February 21, 2012, the EEOC received a charge of discrimination filed by Dr. Chawla. Docket No. 71-1. The charge of discrimination alleged discrimination on the basis of national origin, religion, and retaliation, including that Dr. Chawla's 2011 basic contributor rating was in retaliation for Dr. Chawla's complaints of harassment. Id. at 1-2. Dr. Chawla claims that, on April 2, 2012, Mr. Wolk interrogated him about LMC's response to the charge of discrimination. Docket No. 41-2 at 3, ¶ 15. On April 2, 2012, Dr. Chawla's attorney provided the EEOC with additional information related to Dr. Chawla's claims. Docket No. 71-1 at 9-12. On June 18, 2012, LMC responded to Dr. Chawla's charge of discrimination. Docket No. 71-2 at 11. On July 27, 2012, Dr. Chawla's counsel notified the EEOC that LMC had terminated Dr. Chawla's employment, claiming that the termination was "motivated by discriminatory animus" and was retaliatory. Docket No. 71-2 at 24. On December 14, 2012, the EEOC issued Dr. Chawla a Notice of Right to Sue. Id. at 31.
On February 7, 2013, Dr. Chawla filed this case. Docket No. 1. He brings claims under Title VII of the Civil Rights Act of 1964 for hostile work environment on the basis of religion, hostile work environment on the basis of ethnic background, retaliation on the basis of religion, retaliation on the basis of ethnic background, wrongful discharge on the basis of religion, and wrongful discharge on the basis of ethnic background. Id. at 8-13. Dr. Chawla asserts claims against LMC under state law for violation of the Colorado Anti-Discrimination Act, Colo.Rev.Stat. § 24-34-401, et seq., breach of contract, promissory estoppel, wrongful discharge in violation of public policy, and breach of the covenant of good faith and fair dealing. Id. at 14-17. LMC moves for summary judgment on all claims. Docket No. 34 at 1.
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact is "material" if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir.2005). An issue is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
However, "[w]hen, as in this case, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir.2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998)) (internal quotation marks omitted). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see Fed.R.Civ.P. 56(e). "To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case." Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)). "In applying this standard, we view all facts and any reasonable inferences that might be drawn from them in the light most favorable to the nonmoving party." Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir.1994).
Under Title VII, it is unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Dr. Chawla does not advance direct evidence that he was fired because of his national origin or religion. When there is no direct evidence of discrimination, a plaintiff must rely on the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to show a defendant's discriminatory animus. See Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.2012) (a plaintiff can prove discrimination "by
LMC does not appear to dispute the first two elements of the prima facie case. Docket No. 34 at 17. Instead, LMC argues that Dr. Chawla has not established that his termination occurred under circumstances giving rise to an inference of discrimination and that Dr. Chawla has not established that LMC's legitimate, nondiscriminatory reason for his termination was pretextual. Id. However, plaintiff's burden to establish a prima facie case is light. Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1171 (10th Cir.2007) ("only the most baseless of [Title VII] claims fails to satisfy" the prima facie burden). The real question is "whether a plaintiff has shown actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion." Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1181 (10th Cir.2002) (internal quotation and citation omitted). As such, the Court assumes, without deciding, that, for the purposes of resolving this motion, plaintiff has established a prima facie case of discrimination based on race and/or religion. See E.E.O.C. v. PVNF, LLC, 487 F.3d 790, 800 n. 5 (10th Cir.2007) ("Regardless of whether [courts] analyze the plaintiff's evidence in reference to the prima facie case or the business justification versus pretext inquiry,... if the court correctly concludes that the evidence of discrimination/pretext fails as a matter of law, summary judgment for the defendant is the proper result." (internal citations and quotations omitted)).
LMC asserts that it terminated Dr. Chawla for poor performance, including not successfully completing the 2011 and 2012 PIPs, Docket No. 34 at 13, ¶ 78, which is consistent with the investigation that led to Dr. Chawla's termination. See
The burden therefore shifts back to Dr. Chawla to show that LMC's stated reasons are pretext for unlawful discrimination. To demonstrate pretext, Dr. Chawla must produce evidence of "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for" its termination decision. See Crowe v. ADT Security Servs., Inc., 649 F.3d 1189, 1196 (10th Cir.2011). Dr. Chawla may also defeat summary judgment by showing that there is a genuine dispute of material fact as to whether defendant's explanations for terminating his employment are pretextual. See Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1318 (10th Cir.2006).
Rather than attack the termination decision of the ARC and ERC directly, Dr. Chawla focuses on Mr. Hooker's actions, asserting that an inference of discrimination exists because (1) Mr. Hooker initiated the mischarging investigation on the same day that Dr. Chawla requested vacation time for a trip to Qatar and Pakistan, (2) upon Dr. Chawla's return from vacation, Mr. Hooker placed Dr. Chawla on the 2011 PIP "based on admittedly back-dated notes," (3) Mr. Hooker gave Dr. Chawla a basic contributor rating in 2011, and (4) Mr. Hooker ordered Dr. Chawla placed on the 2012 PIP based upon an LMC policy that Mr. Hooker did not apply to similarly situated employees. Docket No. 41 at 20-21. Dr. Chawla argues that the ARC, ERC, and EAC were "relied upon by Defendant to collectivize the decision to terminate Dr. Chawla and were nothing more than rubber stamps." Id. at 21.
Dr. Chawla fails to meet his burden of showing either pretext or a genuine dispute of material fact. First, Dr. Chawla fails to set forth "specific facts," identified by "reference to affidavits, deposition transcripts, or specific exhibits" to support his contentions, which is, by itself, an independent basis for granting LMC's motion for summary judgment on these claims. See Adler, 144 F.3d at 671. Second, Dr. Chawla's focus on Mr. Hooker's actions is, in large part, irrelevant because Dr. Chawla has not shown any link between Mr. Hooker's actions and his termination. As of January 2012, Mr. Hooker ceased to be Dr. Chawla's supervising manager and had no further involvement in implementing the 2012 PIP or in assessing Dr. Chawla's performance, nor did he have any involvement in the ARC, ERC, or EAC that considered Ms. Kaplan's report. It is undisputed that, although the ARC could recommend termination, the final authority to terminate Dr. Chawla was vested exclusively in the ERC, the only entity with the power to issue a final disciplinary disposition "where ... termination of employment has been recommended by the ARC." Docket No. 36-2 at 5.
Third, given that the ERC had final decisionmaking authority, Dr. Chawla fails to identify specific facts suggesting that the ERC's decision was discriminatory. Dr. Chawla identifies no evidence upon which a reasonable juror could conclude that Mr. Pierce and Mr. Facchinello were aware of Dr. Chawla's national origin and/or religion at the time of the termination decision. Cf. EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir.2006) ("[I]t is undisputed that Ms. Edgar, who formally made the termination decision, worked in a different city and had no idea that Mr. Peters is black. She therefore could not have acted for racially discriminatory reasons."); see
Fifth, even assuming that the ERC members could infer Dr. Chawla's national origin from his name, as a general rule, a plaintiff must "`proffer evidence that shows each of the employer's justifications is pretextual.'" Lobato v. N.M. Env't Dep't, 733 F.3d 1283, 1289 (10th Cir.2013) (quoting Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1126 (10th Cir.2005). Absent that, "[i]t is not simply a question of how many of the defendant's reasons a plaintiff has refuted, but rather a question of whether casting doubt on a particular justification necessarily calls into doubt the other justifications." Bryant, 432 F.3d at 1127. Although Dr. Chawla claims that the 2011 PIP, his 2011 basic contributor rating, and the decision to place him on the 2012 PIP arose under circumstances giving rise to an inference of discrimination, he makes no attempt to rebut what appears to be the predominant reason for his termination, namely, his poor performance in 2012, including his failure to successfully complete the 2012 PIP.
Despite Dr. Chawla's failure to cite any supporting authority, his focus on Mr. Hooker's actions and reference to "rubber stamps" could be construed as an attempt to hold LMC liable under the subordinate bias or "cat's paw" theory. See Lobato v. N.M. Env't Dept., 733 F.3d 1283, 1294 (10th Cir.2013).
Mr. Hooker was certainly aware that a PIP may lead to disciplinary actions, including termination, and that LMC would typically not terminate employees after a single PIP. Docket No. 34-12 at 2, pp. 125:12-126:15. And yet Dr. Chawla fails to identify specific facts, as is his burden to do, upon which to rest the conclusion that Mr. Hooker's ultimate goal was Dr. Chawla's termination or that termination was likely to result from Dr. Chawla's mere placement on the 2012 PIP. Even assuming that Mr. Hooker had such a goal, Dr. Chawla fails to satisfy the causation element. There is no evidence that Ms. Kaplan interviewed Mr. Hooker as part of her
For the foregoing reasons, LMC's motion for summary judgment is granted with respect to Dr. Chawla's third and sixth claims for discriminatory discharge. See Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1114 (10th Cir.2007) ("[I]t appears that Steve Lovas, the president of the region in which Ms. Timmerman's branch was located, made the final termination decision, and Linda Sincoff, an employee in [HR], made the recommendation that she be fired. Because there is no evidence that Ms. Johnson actually caused Ms. Timmerman's termination, nor that Mr. Lovas was merely a rubber stamp for Ms. Johnson's alleged prejudice, Ms. Timmerman's claims against U.S. Bank necessarily fail.").
Title VII prohibits retaliation against individuals who oppose discriminatory employment practices in complaints or investigations of employment practices prohibited by Title VII. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must prove three elements: "(1) protected employee action; (2) adverse action by an employer either after or contemporaneous with the employee's protected action; and (3) a causal connection between the employee's action and the employer's adverse action." Jencks v. Modern Woodmen of Am., 479 F.3d 1261, 1264-65 (10th Cir.2007). As to the third element, plaintiff "must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Univ. of Tex. Sw. Med. Center v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013). If plaintiff can establish a prima facie case, defendant must then articulate a legitimate, nondiscriminatory or non-retaliatory reason to support its employment decision. Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir.2006). At that point, the burden shifts back to plaintiff to demonstrate that the defendant's legitimate reason is pretext. Id.
"Protected opposition can range from filing formal charges to voicing informal complaints to superiors." Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir.2004). "Although no magic words are required, to qualify as protected opposition the employee must convey to the employer his or her concern that the employer has engaged in a practice made unlawful by [anti-discrimination statutes]." Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir.2008). Dr. Chawla need only show that, "when he engaged in protected opposition, he had a
LMC does not dispute that Dr. Chawla took protected action in complaining about discrimination. Docket No. 34 at 19. Dr. Chawla identifies three retaliatory actions: (1) the 2011 basic contributor rating, (2) placement on the 2012 PIP, and (3) termination. Docket No. 41 at 21.
LMC does not dispute that a basic contributor rating is an adverse employment action and that the action took place after Dr. Chawla's August 2, 2011 and September 22, 2011 complaints.
The Court assumes, without deciding, that a PIP constitutes an adverse employment action. Dr. Chawla does not establish precisely when the decision was made to place him on the 2012 PIP. As of February 10, 2012, the day the 2012 PIP was issued, Dr. Chawla's only complaints of discrimination were in August and September 2011, of which Mr. Hooker was aware. To the extent Dr. Chawla argues that a temporal connection is sufficient to establish causation, Dr. Chawla fails to identify any other evidence indicating that, but for his discrimination complaints, he would not have been placed on the 2012 PIP. Cf. Anderson, 181 F.3d at 1179 ("a three-month period, standing alone, is insufficient to establish causation"). Dr. Chawla has therefore failed to satisfy the causal element. Moreover, even assuming that Dr. Chawla established a prima facie case, LMC asserts that Dr. Chawla was placed on the 2012 PIP because of his 2011 basic contributor rating and failure to complete the 2011 PIP. Docket No. 34 at 9, ¶ 51. With respect to completion of the 2011 PIP, the only evidence Dr. Chawla offers to dispute LMC's contention that he failed to complete the 2011 PIP is his own subjective belief, see Docket No. 41-2 at 3, ¶ 24, which is insufficient to create a dispute of material fact. See Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996) (noting that a plaintiff's subjective belief is insufficient to show pretext). Dr. Chawla's basic contributor rating was supported by unrebutted reasons contained in the 2011 PADR and, per LMC policy, employees assigned to special programs who are rated as basic contributors are placed on a PIP. Docket No. 35-2 at 1; see also Docket No. 37-6 at 4, p. 35:21-23.
As discussed above, the ERC made the final decision to terminate Dr. Chawla's employment, but Dr. Chawla provides no evidence that the ERC was aware of his complaints. Ms. Kaplan's investigation report contained no information regarding Dr. Chawla's protected activity. See generally Docket Nos. 37-8, 37-9, 37-10, 37-11. Mr. Facchinello states that he did not know whether Dr. Chawla "complained of discrimination or retaliation at the time while he worked at LMC." Docket No. 39-6, at 2, ¶ 5. Dr. Chawla fails to rebut this statement or identify evidence upon which a reasonable juror could conclude that Mr. Pierce was aware of Dr. Chawla's discrimination complaints. See Hinds v. Sprint/United Mgm't Co., 523 F.3d 1187, 1203 (10th Cir.2008) (holding that, in order to show a causal connection, plaintiff must present evidence "from which a reasonable factfinder could conclude that those who decided to fire him had knowledge of his protected activity"). Moreover, as discussed above, Dr. Chawla fails to rebut the predominant reason for his termination, namely, his poor performance in 2012. See Bryant, 432 F.3d at 1127. As such, Dr. Chawla fails to show that, but for his protected conduct, his termination would not have occurred. To the extent Dr. Chawla asserts subordinate bias liability, for the above stated reasons, his argument fails. Thus, Dr. Chawla's claim that his termination was motivated by retaliatory animus fails.
For the foregoing reasons, LMC's motion for summary judgment on Dr. Chawla's second and fifth claims for relief is granted.
"Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). "To survive summary judgment on a claim alleging a ... hostile work environment, [the plaintiff] must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, and that the victim was targeted for harassment because of [his protected status]." Hernandez v. Valley View Hosp. Ass'n, 684 F.3d 950, 957 (10th Cir.2012) (internal quotation marks omitted). Dr. Chawla must also show that LMC is liable for any unlawful incidents of national origin-related or religious harassment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). It is on the issue of liability that Dr. Chawla's claims fail as a matter of law.
The Court first turns to the scope of Dr. Chawla's claims. As a threshold matter, Dr. Chawla's brief does not clearly identify the alleged incidents that form the basis of his hostile work environment claim, except to state, without citation to the record, that he was subject to "a steady barrage of comments at Lockheed from at least seven (7) identified co-workers including his own manager." Docket
The Court turns to the issue of liability and, for the purposes of this analysis, assumes, without deciding, that the identified incidents are sufficient to show the existence of an actionable hostile work environment. The Supreme Court has ruled that employers are not automatically liable for sexual harassment perpetrated by their employees. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275,
Under the negligence theory, an employer is liable only "if it knew or should have known" about the harassing conduct of a non-supervisory employee and failed to stop it. Ellerth, 524 U.S. at 759, 118 S.Ct. 2257; Bertsch, 684 F.3d at 1027. To prove this theory of liability, Dr. Chawla must establish that (1) the employer had actual knowledge or constructive knowledge of the harassment and (2) the employer's remedial and preventative responses to the harassment were inadequate. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir.1998). Actual knowledge is demonstrable when the "plaintiff has reported harassment to management-level employees." Id. Because, as discussed above, the identified incidents of alleged harassment were all reported to LMC, the Court finds that LMC is chargeable with actual knowledge of the allegedly harassing conduct forming the basis of Dr. Chawla's claims.
The adequacy of an employer's response to incidents of racial or religious harassment is measured by "`whether the remedial and preventative action [is] reasonably calculated to end the harassment.'" Tademy v. Union Pac. Corp., 614 F.3d 1132, 1148 (10th Cir.2008) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir.1998). The Tenth Circuit has held that, generally, if the employer's response "ends the harassment by the employee in question, we presume that the remedial action was sufficient." Duncan v. Manager, Dep't of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1310 (10th Cir. 2005); see also Adler, 144 F.3d at 676 ("A stoppage of harassment shows effectiveness, which in turn evidences ... reasonable calculation."). In all cases, the employer is absolved of liability for acts of harassment by its employees so long as its remedial and preventative action is "reasonably calculated to end the harassment." Duncan, 397 F.3d at 1310 (quotation omitted).
Dr. Chawla provides no evidence that, once LMC responded to a complaint, the co-worker in question engaged in repeat harassment. Both of Mr. Hooker's alleged incidents of harassment occurred prior to LMC's investigation of those incidents. Mr. Hooker was given a verbal reprimand for sending the offensive email, Docket No. 38-7 at 1, and Dr. Chawla provides no evidence that Mr. Hooker subsequently
Dr. Chawla's criticisms of LMC's response fail to rebut this presumption. Docket No. 41 at 20. First, Dr. Chawla fails to identify any evidence to suggest that his coworkers were somehow motivated to engage in harassing behavior based on the alleged inadequacy of LMC's response. See Adler, 144 F.3d at 678 (holding that, unless plaintiff establishes "a nexus between a prior response and later harassment by others, the later harassment is irrelevant to the adequacy of the prior response"). Second, Dr. Chawla claims that LMC failed to investigate all of Dr. Chawla's complaints, but, as noted above, he fails to identify any incidents of harassment that were either unreported or reported but not investigated. Docket No. 41 at 20. Third, he claims that the investigation process was "delayed for months," which appears to be a reference to Ms. Campbell's six-week delay in investigating the February 14, 2012 complaint. Id. However, Ms. Campbell offered an unrebutted explanation for the delay and, more importantly, there is no evidence that the co-workers identified in the February 14, 2012 complaint engaged in any subsequent improper behavior that an earlier investigation may have prevented. Fourth, although Dr. Chawla suggests that LMC investigated acts of discrimination without questioning witnesses, he fails to identify any specific instance where such a failure took place. Id. Fifth, Dr. Chawla does not explain why the only reasonable response to his complaints would have been to remove the offending coworkers from his team. See Adler, 144 F.3d at 676 ("an employer is not required to terminate a perpetrator except where termination is the only response that would be reasonably calculated to end the harassment"). Although Mr. Nichols suggests that Dr. Chawla may have at one point requested a transfer, Dr. Chawla does not explain why LMC's alleged failure to transfer him was the only reasonable response to his harassment complaints. Dr. Chawla's criticisms of LMC's response therefore fail to create a genuine dispute of fact.
For the foregoing reasons, LMC's motion for summary judgment on Dr. Chawla's first and fourth claims for relief is granted.
Having dismissed Dr. Chawla's claims arising under federal law, the Court next addresses the issue of whether it should exercise jurisdiction over Dr. Chawla's remaining claims, which are based upon state law. While courts may exercise supplemental jurisdiction over state law claims if there is otherwise a jurisdictional basis for doing so, 28 U.S.C. § 1367(c)(3) states that a court may decline to exercise jurisdiction over such claims if "the district court has dismissed all claims over which it has original jurisdiction." When § 1367(c)(3) is implicated in the Tenth Circuit, courts are advised to dismiss pendent state law claims "`absent compelling reasons to the contrary.'" Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir.2010) (quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir.1995) (reversing the district court's grant of summary judgment on state law claims); Endris v. Sheridan Cnty. Police Dep't, 415 Fed.Appx. 34, 36 (10th Cir.2011) ("any state-law claims for assault and battery or mental and emotional injury were inappropriate subjects for the exercise of pendent jurisdiction where all federal claims had been dismissed"). But see Henderson v. Nat'l R.R. Passenger Corp., 412 Fed.Appx. 74, 79 (10th Cir.2011) (finding no abuse of discretion in trial court's decision to retain jurisdiction over state law claims after plaintiff voluntarily dismissed claims arising under federal law). Finding no compelling reason here to retain jurisdiction, the Court will dismiss Dr. Chawla's remaining claims without prejudice. See Colo.Rev.Stat. § 13-80-111 (permitting claims properly commenced within the statute of limitations to be re-filed if involuntarily dismissed because of lack of jurisdiction); Dalal v. Alliant Techsystems, Inc., 934 P.2d 830, 834 (Colo.App.1996) (interpreting 28 U.S.C. § 1367(d) as tolling the statute of limitations while claim is pending in federal court); see also City of Los Angeles v. Cnty. of Kean, 59 Cal.4th 618, 174 Cal.Rptr.3d 67, 328 P.3d 56, 65 (2014) (noting that interpretations of § 1367(d) vary between jurisdictions).
For the foregoing reasons, it is
