Opinion
Civil Action No. 03-CV-2123.
July 14, 2004
MEMORANDUM ORDER
Presently before the Court is Defendant, Amergen Energy Co., LLC's Motion for Summary Judgment (Doc. No. 9). For the following reasons, Defendant's Motion will be granted and Plaintiff, Zeechung Gary Wang's Complaint (Doc. No. 1) will be dismissed.
I. Background
Plaintiff is a former employee of Defendant. After Plaintiff was terminated in July, 2000, he filed the instant Complaint alleging that Defendant violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. § 951 et seq., when it terminated Plaintiff on the basis of his national origin and/or race.
Plaintiff was born and raised in Taiwan. (Doc. No. 11 at 3.) After attending the National Taiwan University, and graduating with a degree in mechanical engineering, Plaintiff moved to the United States, and eventually became an American citizen in 1989. After coming to the United States, Plaintiff continued his education, obtaining a Masters degree from Rensselaer Polytechnic Institute in mechanical engineering. ( Id.) Plaintiff also attended Pennsylvania State University at Harrisburg, taking post-graduate courses in a nuclear engineering program and enrolling in the school's computer science graduate program.
Plaintiff began studying English in middle school in Taiwan, and eventually served as a teaching assistant during his graduate studies. In addition, Plaintiff passed the Test of English as a Foreign Language (TOEFL) and the Graduate Record Exam (GRE) in English with good scores. ( Id.)
While still in Taiwan Plaintiff was employed at a nuclear power plant run by A.E. Company. He then worked on the construction of a nuclear power plant for Taiwan Power Company. After coming to the United States Plaintiff went to work for Guld Corporation, a nuclear simulator vendor in New York. In 1984 GPU Nuclear recruited Plaintiff and assigned him to work as a field engineer at the "Three Mile Island -1 ("TMI") simulator project development" at Singer Link Company in Maryland ( Id.) Plaintiff then moved to the TMI Nuclear Generating Facility, working in the Plant Process Computer ("PPC") group as an Engineer III. In 1988, he was promoted to Senior Software Engineer I, which is the position he held for the majority of his career at TMI. ( Id. at 2.)
In 1999, Defendant purchased TMI. In 2000 Defendant reorganized its operations at TMI. (Doc. No. 9 at 1.) As a part of the reorganization, Plaintiff's manager, William Fels, was directed to reduce the staff of eight engineers who worked in the PPC group by one position. ( Id.) The engineers in the PPC group performed computer engineering tasks either on the Plant Process Computer, or the TMI Replica Simulator ("Simulator"). (Doc. No. 9 Ex. B ("Fels Dep." at 12.) Plaintiff was assigned to work on the Simulator along with engineers Stephen Lentz, Kevin Clark, and Ray Hein. ( Id. at 24-25.) Fels decided to eliminate one of the engineers who worked on the Simulator.
The Simulator is housed in a training facility that is in a separate plant not physically located on TMI. The Simulator is a computer-based system that recreates the systems at work in the plant to train TMI employees. Simulator training is dedicated to training TMI employees for emergency preparedness, licensing, and periodic employee re-qualification. The engineers who work on the Simulator are responsible for modifying and repairing the computer hardware and software that drive the Simulator. (Doc. No. 9 Ex. J. ("Husted Aff.") ¶ 8.)
The engineers, including Plaintiff, received most of their assignments from Bill Fraser and Charles Husted, the Simulator Analysts, who worked in the Operations Training Department. ( Id. ¶ 9.) Once a project was assigned, the PPC manager and the engineer would discuss the nature and scope of the project with the Simulator Analyst who assigned the project. (Doc. No. 9 Ex. F ("Fraser Dep.") at 11-13; Husted Aff. ¶¶ 14-15.) The engineer to whom the project was assigned was then expected to complete the project correctly and on time, and pre-test the product to ensure it worked before it was submitted to the Simulator Analyst. (Fraser Dep. at 13, 49.) Each of the projects had a due date that was based on the complexity of the project, the engineer's other assignments, and the training dates and priority of the assignment. (Fels. Dep. at 33-34; Husted Aff. ¶ 11.) From the early 1990s, a program was used that tracked the completion of projects and their completion dates. This program required the engineers to get approval from the manager before extending the due date on a project. As part of his role as manager, Fels stressed the importance of meeting these deadlines and spoke to individual engineers about deadline problems. (Doc. No. 9 Ex. C ("Lentz Dep.") at 32.)
In order to implement the reorganization in 2000, a Functional Integration Team ("FIT") was assembled to evaluate appropriate staffing levels at TMI and other nuclear power plants owned by PECO Energy Company ("PECO"), one of Defendant's partners. (Fels Dep. at 54.) FIT recommended that Fels eliminate one of the engineer positions. But for the order to eliminate one of the engineer positions, Fels had no plans to eliminate any of the positions because he had enough work for four engineers. (Fels Dep. at 72.) Fels decided to eliminate one of the engineers on the Simulator because this would bring the Simulator staff in line with staffing levels at other PECO nuclear facilities. (Fels. Dep. at 58.) To choose which of the four engineers to eliminate, Fels decided to use three criteria: (1) input from the internal Simulator customers; (2) recent and past work performance; and (3) versatility in handling the overall work of the PPC group. (Fels Dep. at 58.) After Fels considered these criteria, he decided that Plaintiff would be the one terminated and he drafted documents explaining the reasons for his decision. (Doc. No. 9 Ex. M.)
The first criteria used — the input from internal Simulator customers — was actually the evaluations of Husted and Fraser, and their manager, Bob Parnell. (Fels Dep. at 60-64.) Fels created a document which he gave to the three individuals, asking them to anonymously rate each of the engineers in terms of: Knowledge, Customer Service, Team/Group Skills, Communications, Work Product Quality/Quantity. (Doc. No. 9 Ex. N.) The completed survey showed that Plaintiff's rankings were considerably lower across the board in all of the skills than the other engineers in the group. Plaintiff's average Knowledge score was 5.3, whereas the other three received scores of 7, 8, and 8.3 respectively. Plaintiff's average Customer Service score was 5.3, whereas the other three received scores of 7, 8 and 8.3. Plaintiff's average Team/Group Skill score was 4, whereas the other three received scores of 6, 7.6, and 7.3. Plaintiff's average Communications score was 4.3, whereas the other three received scores of 5.6, 6, and 7.6; Plaintiff's average Work Product Quality/Quantity score was 3.6, whereas the other three received scores fo 7.3, 8, and 7.6. ( Id.) After adding all of the averaged scores together, Plaintiff's score was 22.5 — significantly lower than the scores of 32.9, 37.6, and 39.1 achieved by the other three engineers in the Simulator group.
The second criteria used by Fels was job performance. To evaluate job performance, Fels reviewed each of the engineers' past performance appraisals. He determined that the other three engineers' appraisals were more consistent than Plaintiff's. See (Doc. No. 9 Exs. W, X, Y.) One of the reasons for this conclusion was that Plaintiff had a higher number of due date changes on his projects than did the other three. ( Id. Ex. M.) Fels ascertained this by using the Engineering Work Tracking System ("ETTS"). ( Id. at 9.) The results from the survey further supported this conclusion. Fraser and Husted confirmed that Plaintiff's "due dates often had to be extended because he had submitted inaccurate work or encountered problems that required substantial rework." (Fraser Dep. at 15 (stating that Plaintiff did not meet his deadlines about 30 percent of the time), 36, 48; Husted Aff. ¶¶ 18-19.) Fels, Fraser, and Husted all acknowledge that Plaintiff frequently worked on very complex projects but they felt that the complexity of the projects was taken into account when the due dates were initially set. (Husted Aff. ¶ 11; Fels Aff. ¶¶ 9-10; Fraser Dep. at 48.) As early as 1993, Fels and Plaintiff's then manager, Bob Washick, identified timeliness as an area Plaintiff needed to improve. (Doc. No. 9 Ex. S.6 at 2 ("Quality and quantity of work produced meets expectations. In the future, quality and timeliness can be improved by, pre-job consultation with Simulator Management, and the pre-testing of changes prior to formal testing."), 5 ("Continue to improve timeliness and quality of Modification and DR Packages.")). These concerns were noted in Plaintiff's evaluation performances again in 1996, 1997, 1998, 1999, and 2000. ( Id. Ex. S.9, S.10, S.11 (noting Plaintiff's improvement in meeting task target dates), S.12 (noting that Plaintiff has been more proactive in approaching difficult projects).) In evaluating job performance, Fels also looked at the engineers' communication skills. Over the course of his employment with Defendant, both Fels and Washick suggested that Plaintiff should improve his communication skills. (Doc. No. 9 Exs. S.1-S.3, S.10, S.11.) Fraser and Husted's comments also supported the conclusion that Plaintiff had trouble understanding and communicating problems with projects. Fraser summarized the problems as follows:
In 1995 and 1996 Plaintiff responded to these concerns about timeliness by writing two memorandum to Fels. (Doc. No. 9 Exs. T, U.)
Communication is multi-level. There's the speaking part. There's a listening part. And there's the responding to what's understood.
When I would communicate I believe that Mr. Wang understood what I was saying. We would converse in a knowledgeable fashion. Then when the product would come back for testing there may be problems with it. We'd discuss it.
And, again, the conversation revolved around understanding what's going on. And come back, and it may still be incorrect. So there is understanding on the surface, but in the execution there was a lack of understanding.
So the communication skill — communications was not just understanding what was said, but actually acting on it, okay.
. . .
The grammar and the words were understood, but the technical follow through to complete the communication I don't think was there. That was the problem. The job didn't get completed.
(Fraser Dep. at 47-48.) Finally, Fels felt that Plaintiff's performance in a "back-up role to the System Administrator was not what Fels expected of a senior engineer." (Doc. No. 9 at 13.) Lentz, the primary Systems Administrator, reiterated this concern, noting that there had been occasions where he had to correct errors Plaintiff had made or recover data Plaintiff had lost. (Doc. No. 9 Ex. L ("Lentz Aff.") ¶ 7.)
The last of the three factors Fels considered when deciding which Simulator engineer to terminate was versatility. Fels determined that Plaintiff had become "somewhat specialized in the software modeling area." (Doc. No. 9 at 14.) Due to the volume of modeling work, Plaintiff rarely worked on other types of projects. (Fels Dep. at 40.) By comparison, Fels believed that the other three engineers had developed significant experience in both software modeling and their other areas of expertise. Hein worked primarily with computer hardware because of his background in electrical engineering, but he also worked on some of the complex modeling normally assigned to Plaintiff. ( Id.; Hein Dep. at 7.) Clark worked on projects that involved "software interfacing with the hardware" so he essentially did both hardware and software work. (Clark Dep. at 8.) In addition, Clark had a good grasp of the simulation software, good skills in diagnosing software problems, and also had backup abilities for the Simulator hardware. (Clark Dep. at 17.) Lentz's concentration was initially software modeling. (Lentz Dep. at 13.) Later, Lentz became the system administrator for the Simulator. ( Id. at 19-20.) Fels determined that Plaintiff was the least versatile of the four engineers working on the Simulator. (Doc. No. 9 Ex. M.)
After deciding that Plaintiff's position was going to be terminated in the reorganization, Fels drafted a "justification" document where he explained his reasons for deciding to terminate Plaintiff. This document stated:
His oral and communications skills are below average for an Engr Sr 1 [sic]. There was a letter of written counsel to human relations in 1997 and there has been minimal improvement since. That review and written counsel also addressed schedule adherence problems. There has been some improvement in this area.
A review of all ETTS tasks shows an unusually high number of date changes for Zee's tasks. Even considering the type of tasks Zee usually works on the number is still high compared to his peers.
Zee's performance of his accountability for backup systems administrator has been below what would be expected of him at his level. On several occasions over the last two years, the administrators has had to do some recovery of work that Zee had performed either incorrectly or had left something out.
Our primary simulator customer was surveyed and ask to rank the simulator staff on their perception of knowledge, customer service, team and group skills, communications, and work product quality and quantity. The customer ranked Zee below the midpoint.
Zee's versatility going forward is hampered by the fact that he is somewhat specialized in the modeling software area. He does not have any knowledge of the plant side software and no knowledge or experience with any of the hardware or I/O systems.
(Doc. No. 9 Ex. M.) Plaintiff was informed of his termination in July, 2000. Thereafter, Plaintiff filed the instant Complaint. Defendant now seeks summary judgment in its favor on the basis that it terminated Plaintiff for legitimate non-discriminatory business reasons as part of a corporate reorganization and reduction in force.
II. Legal 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 as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the non-moving party's legal position. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-324 (1986). The burden then shifts to the nonmoving party who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The nonmoving party . . . cannot rely merely upon bare assertions, conclusory allegations or suspicions to support its claim." Townes v. City of Phila., No. Civ. A. 00-CV-138, 2001 WL 503400, *2 (E.D. Pa. May 11, 2001) (quoting Fireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir. 1982)). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. When deciding a motion for summary judgment, the court must construe the evidence and any reasonable inferences therefrom in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. at 248.
For purposes of this motion, Defendant concedes that Plaintiff has established a prima facie case of discrimination. Once a plaintiff establishes a prima facie case of discrimination, the "burden of production shifts to the defendant to `articulate some legitimate, nondiscriminatory reason for the'" failure to retain the plaintiff. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (emphasis removed) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The employer satisfies this burden "by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes, 32 F.3d at 763 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). The employer need not show that it was actually motivated by its proffered reasons. St. Mary's, 509 U.S. at 510-11. Once the employer meets this "relatively light burden," "the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation is pretextual (thus meeting the plaintiff's burden of persuasion)." Fuentes, 32 F.3d at 763.
PHRA claims are analyzed under Title VII standards. Harley v. McCoach, 928 F. Supp. 533, 538 (E.D. Pa. 1996) ("Claims brought under the PHRA are analyzed under the same standards that have evolved under Title VII.") (quoting Brennan v. Nat'l Tel. Directory Corp., 881 F. Supp. 986, 994 n. 5 (E.D. Pa. 1995)).
"At trial, the plaintiff must convince the factfinder ` both that the reason was false, and that discrimination was the real reason.'" Fuentes, 32 F.3d at 763 (quoting Hicks, 509 U.S. at 515). However, to survive summary judgment, the plaintiff must only "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes, 32 F.3d at 764 (citing Hicks, 509 U.S. at 511). The Court of Appeals for the Third Circuit further described the Plaintiff's evidentiary burden as follows:
In other words, because the factfinder may infer from the combination of the plaintiff's prima facie case and its own rejection of the employer's proffered non-discriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons . . . a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. . . . [T]he plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext). To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. . . . Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence,' . . . and hence infer `that the employer did not act for [the asserted] non-discriminatory reasons.'. . . . While this standard places a difficult burden on the plaintiff, `[i]t arises from an inherent tension between the goal of all discrimination law and our society's commitment to free decision making by the private sector in economic affairs.'Fuentes, 32 F.3d at 764-65 (footnotes, citations, and quotations omitted). With these standards in mind, we will now assess whether Plaintiff and Defendant have met their respective evidentiary burdens.
In interpreting Title VII, the courts "have recognized two types of disparate treatment employment discrimination actions — `pretext' and `mixed motive' — and have applied different standards of causation depending on the type of case the plaintiff has presented." Watson v. Southeastern Pa. Transp. Auth., 207 F.3d 207, 214-15 (3d Cir. 2000) (citing Griffiths v. CIGNA Corp., 988 F.2d 457, 472 (3d Cir. 1993)). In contrast to the "pretext" theory brought by Plaintiff, in a "mixed motive" case the "plaintiff need only show that the unlawful motive was a `substantial motivating factor' in the adverse employment action." Id. (citing Miller v. CIGNA Corp., 47 F.3d 586, 595 (3d Cir. 1995)). Plaintiff has not alleged a mixed motive action. The fact that Plaintiff has not labeled the instant suit a "mixed motive" action does not mean the Court is limited from considering it as such. However, the fact that plaintiff has not contended that Defendant's conduct was motivated, in part, by legitimate reasons suggests that the instant case only involves the existence of "pretext."
III. Discussion
A. Defendant's Burden to Articulate Legitimate, Non-Discriminatory Reasons
It is clear that Defendant has met its "relatively light" burden of articulating a legitimate, non-discriminatory reason for deciding to terminate Plaintiff as part of the reorganization. Defendant has produced evidence that Fels considered three factors in deciding which engineer in the Simulator group to eliminate. Ultimately this evidence came from annual performance evaluations and the assessment of the internal customers. The reviews of the internal customers were unequivocal — Plaintiff was rated lower than any of the other three engineers in knowledge, customer service, team/group skills, communications, and work product quality/quantity. (Doc. No. 9 Ex. N.) In addition, Plaintiff's performance evaluations affirmed that Plaintiff had communication problems and consistently had difficulties finishing projects on time. ( Id. Ex. S.) Fels admits that he would not have terminated Plaintiff if he had not been told to eliminate one engineer. (Fels Aff. ¶ 6.) Based on the evaluation process that Defendant undertook before terminating Plaintiff's employment, we are satisfied that Defendant has articulated legitimate, non-discriminatory reasons for terminating Plaintiff.
B. Plaintiff's Rebuttal of Defendant's Reasons
Plaintiff offers three reasons why we should discredit Defendant's explanations for terminating him, and why we should find a genuine issue of material fact as to the claim that Defendant engaged in discrimination based on race or national origin. Plaintiff argues that (1) he was better qualified than any of the other engineers in the Simulator group who were not selected for termination; (2) Plaintiff's manager, Fels, exhibited racial animus towards individuals of Asian origin; and (3) one of the internal customers, Husted, exhibited racial animus towards individuals of Asian origin.
1. Plaintiff's claim that he was better qualified than the other engineers who were not terminated
Plaintiff believes that his termination must be based on discrimination since he was better qualified that the other engineers who retained their jobs. Plaintiff was hired as a "computer application engineer three." (Doc. No. 9 Ex. A ("Wang Dep.") at 137.) In 1988, Plaintiff was promoted to "senior engineer one." ( Id. at 138.) Since that time Plaintiff has not been promoted, while other co-workers in lower positions have been. ( Id.) However, among all of Plaintiff's co-workers only one had been promoted to a higher position. ( Id. at 140.)
Plaintiff contends that he was the most qualified engineer in the Simulator group. Plaintiff is very sure of his own abilities, describing himself as the "shining star in my professional areas," (Wang Dep. at 59), and describing his work as "outstanding," ( Id. at 186-87), and "hotstuff," (Doc. No. 19 Ex. U at 3). Other engineers and independent contractors also praised Plaintiff's work. One of the independent contractors, Dr. Lee, said, "I believe from my observation that Mr. Wang was much more qualified that the three co-workers, [Lentz, Hein, and Clark]. . . ." (Doc. No. 11 Ex. F ("Lee Aff.").) Washick, Plaintiff's former supervisor, stated that based on knowledge, teamwork, communications, customer service, he would have ranked Plaintiff above his three co-workers. (Washick Dep. at 48.)
Plaintiff believes that because he was the most qualified engineer he received the most difficult work. See (Doc. No. 19 Ex. U at 3 (Plaintiff stating, "Bill lets face it, I always get difficult and controversial tasks, and others get simple, success-oriented, non-controversial and high visibility work.").) Fels agreed that Plaintiff "was still getting most of the modeling and the flow and the heavier software types [of deficiency reports]." (Fels Dep. at 39.) Plaintiff contends that the only reason the dates for the completion of his reports were ever pushed back was because he was working on very complicated problems. Fraser agreed in part, stating that "[Plaintiff's] work required more rework and more time than . . . the other projects we had . . . some of it was due to more complex items. Others were . . . just rework . . . when the material was presented for test it didn't work the way we wanted it to." (Fraser Dep. at 26.)
Plaintiff has put forth considerable evidence showing that he was more skilled and worked on more complicated projects than his co-workers. However, this evidence by itself is insufficient to show that the reasons for Plaintiff's termination was pretext, and that discrimination was the real reason. Fuentes, 32 F.3d at 763 (quoting Hicks, 509 U.S. at 515). Plaintiff was not terminated because he was performing unsatisfactorily, he was terminated because his performance was viewed as significantly less satisfactory than his co-workers.
Plaintiff's problems communicating and meeting project deadlines are well documented through years of performance reviews. From as early as 1985, Plaintiff received criticism about his verbal skills. See (Doc. No. 9 Ex. S.1 "Also some barrier is present in communication since English is not Zeechung's first language. Improved verbal skills can improve performance.".) This type of critique was consistent in Plaintiff's evaluations whether Plaintiff was evaluated by Washick or Fels. See, e.g. ( Id. Ex. S.2 (Washick writing "Continue to develop proficiency but also to focus on improving communication skills. A course in communications could enhance performance.".); ( Id. Ex. S.3 (same)); ( Id. Ex. S.8 ("[Plaintiff's] oral and written communication skills meet expectations. A common method used that can help improve communications is to ask questions and/or ask the individual or team to repeat/summarize the issue. Utilizing these techniques can improve the overall communications and reduce the possibility of misunderstandings.").)
Plaintiff's trouble meeting deadlines are equally well documented in evaluations by both Fels and Washick. See, e.g. ( Id. Ex. S.4 (Washick writing that Plaintiff "is average with regard to getting work done on time. . . .); ( Id. Ex. S.6 (Fels writing that "quality and timeliness can be improved by, pre-job consultation with Simulator Management, and the pre-testing of changes prior to formal testing."); ( Id. Ex. S.8 (Fels writing that Plaintiff should "[l]ook for ways to avoid delays associated with incorrect/inconsistent data or test methods, on difficult DR's and Mod's.").) These comments on Plaintiff's annual evaluations were supported by the customer service rankings discussed earlier.
Plaintiff attempts to show that the reasons for his termination were pretextual because others were complimentary of his skills and of his work. As we have noted, to show that an employer's explanation is a pretext for discrimination, the plaintiff must "demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence. . . .'" Fuentes, 32 F.3d at 765. "[A]n employer may have any reason or no reason for discharging an employee so long as it is not a discriminatory reason." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir. 1995) (quoting McCoy v. WGN Cont'l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)). In other words, "our inquiry is limited to whether the employer gave an honest explanation of its behavior." Brewer, 72 F.3d at 331 (quoting McCoy, 957 F.2d at 373); see also, Hicks v. Arthur, 878 F.Supp. 737, 739 (E.D. Pa. 1995) ("[A]n ill-informed decision or an ill-considered decision is not automatically pretextual if the employer gave an honest explanation for termination.") (quotations omitted), aff'd, 72 F.3d 122 (3d Cir. 1995) (table).
In the instant case, Plaintiff has not shown any "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in Defendant's proffered reasons for terminating him. Good evaluations of performance cannot establish that unsatisfactory evaluations are pretexutal. Billet v. Cigna Corp., 940 F.2d 812, 826 (3d Cir. 1991) (citing Turner v. Schering-Plough Corp., 901 F.2d 335, 343-44 (3d Cir. 1990) overruled in part on other grounds by St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In Billet, the plaintiff brought claims of discrimination after he was discharged as part of a reorganization. In an attempt to demonstrate that the termination was pretext, the plaintiff introduced "his prior record of good evaluations" to show that the negative evaluation was "not worthy of credence." Id. at 822. The court held that the plaintiff's introduction of favorable reviews "did not provide enough evidence to create a jury question regarding [defendant's] serious articulated concerns with his performance. . . ." Id. at 82. The same conclusion must be reached with respect to Plaintiff's claims that he was more qualified than his co-workers. Despite Plaintiff's evidence that he was better qualified, there is substantial evidence supporting Defendant's decision and demonstrating that Defendant had legitimate nondiscriminatory reasons for selecting Plaintiff as the one to be terminated as part of the reorganization. Moreover, Plaintiff was not terminated because he was not performing adequately. Rather, he was terminated because Fels was told that he needed to eliminate one position. The evidence clearly supports the conclusion that Plaintiff's superiors thought that overall, Plaintiff was performing at a level lower than his co-workers.
2. Plaintiff's claim that his termination was a result of Fels' racial animus
Plaintiff proffers evidence of Fels racial animus to show that Defendant's reasons for terminating him were pretext. Plaintiff believes that Fels treated individuals of Asian origin differently than he treated non-Asians. As a part of the Simulator operations, independent contractors were hired to do limited projects. One of these contractors was Dr. Patrick Lee. Chinghai Chang, worked for Lee as an independent contractor at TMI. Both of these men were originally from Asia, but were now both American citizens. In his role as a contractor, Chang would receive projects and then submit his reports to Fels. (Doc. No. 11 Ex. D ("Chang Dep.") at 18.) Chang generally describes Fels as a "picky person." ( Id. at 19.) After submitting his first report, Fels complained to Chang that the project was not correct. Chang felt this was an unfair assessment. In response to Fels' critique, Chang found a comparable report, written by a non-Asian to show Fels that there was no difference, and that Chang's report was correct. ( Id. at 20.) Chang specifically picked the report of a non-Asian because he thought "maybe [Fels] doesn't like the way the Chinese report, I don't know. So I said I want to look at how they — these are not Chinese people that had the report. I look at it, is the same [sic]." ( Id. at 22.) Chang felt that Fels was critical of the content of the report as well as how the report was written. ( Id. at 24.) As a result of this interaction with Fels, Chang spoke with Washick, who at that time was Fels' superior. After the discussion, Chang's thought that things had "improved . . . a little bit, not much . . . [i]t still kind of weird feeling [sic]." ( Id. at 28.) The basis for this feeling was the fact that while Fels "joked" around and laughed with other employees, he never had that kind of conversation with Chang. ( Id.)
In addition to the generally "weird feeling" he got around Fels, Chang once heard Fels use derogatory language in referring to people of Chinese origin. Specifically, Chang overheard Fels say something "about China men [sic]. . . ." ( Id. at 29.) Chang does not know in what context Fels made this comment, whom he made the comment to, or whether the comment was meant to be critical. ( Id. at 31-32.) Besides that single comment, Chang never heard Fels make the same remark or heard complaints from other people that Fels used inappropriate language around them. ( Id. at 32.) Chang never heard anyone else at TMI use inappropriate language regarding any of the other employees of Asian origin. ( Id. at 34.)
As an outside contractor working on the Simulator, Lee also had frequent interaction with Fels and the engineers in the Simulator group at TMI. Generally, Lee felt that he had a "very good relationship with TMI." (Doc. No. 11 Ex. E ("Lee Dep.") at 32.) However, Lee did feel that Fels was more reluctant around him and less outgoing, than the previous supervisor, Washick had been. ( Id. at 35.) Lee felt that the two reasons Fels was a "little bit defensive" around him was because of Fels "lack of a technical background," and that Fels was "not comfortable dealing with Asian people." ( Id. at 36.) Though Lee described Fels as unpleasant he never heard Fels refer to his ethnicity or Asian background in a disrespectful or derogatory manner. ( Id. at 37.) Lee, however was told by Chang he had once heard Fels use the phrase "China men" in a way that he thought was inappropriate. ( Id. at 40.) That was the only instance that Lee heard of Fels using that type of language. ( Id. at 41.)
After six years of working as a contractor at the Simulator, Lee's contract was not renewed. Fels told Lee that there was no money in the budget to hire Lee again. ( Id. at 52.) Lee was never invited to bid on another project at TMI. ( Id. at 54.) At some point later, Lee found out that there were two other consultant groups doing software work on the Simulator. ( Id. at 60.) In addition, Lee found out that one of his former employees, Gary Lee — an Asian-American, was working at the Simulator. ( Id. at 56.) Lee called Fels to ask why he hired Gary Lee without going through him. Fels responded that "he needed Gary Lee so he contacted him directly." ( Id.) Plaintiff contends that Fels treatment of Lee, including "lying" to him about having money in the budget to pay him, and hiring one of his employees, further illustrates Fels racial animus.
Plaintiff thought Fels treated him in an unfriendly manner, similar to the way Chang and Lee described their interactions with Fels. During his time working for Defendant, Plaintiff was first supervised by Washick. By the beginning of 1995, Plaintiff began reporting to Fels. (Wang Dep. at 79.) Plaintiff believes that Fels treated him differently because of his national origin:
I think Fels was born and raised in rusty belt in Pittsburgh area and since I start with my career at GPU . . . we work in the same building for many years.
The first two or three years he even never say hi [sic] to me as a new employee, has a very, very long face every day in the mid 80's, and I wasn't, I don't have too much interface with him at that time before '90. I know he didn't want to talk to me.
And in early '90 we are very busy, late '80 and early '90 we were very busy to put up a file for the system because the new system was cut over to us in '87 or '88. We had a lot of work to do and about in, like I say, in '91 he came over to our side as a trainee, as an intern.
He was very reluctant to work with us and he didn't know the system and although he has a supervisor position, but I can see every day I look his face wasn't too happy because he wasn't understanding the system and he couldn't get involved, contribute to the project, but that's another issue.
All our observation and the feeling is about he didn't like me because there are a few contractors that work with us, they are Chinese American, too, and he and some, the other person, they have probably a conversation in the hallway or somewhere and the contractor told me about they are talking about us because we are the project hero and, you know, they stand in the side, stand back and they try looking for, you know, looking for our fault.
Because Fels was a supervisor at that time and one of the contractors came back to me and say they're talking about us. It was that kind of language.
( Id. at 97-98.) Plaintiff also once was told Fels called his wife a "polack [sic]." ( Id. at 98.) Plaintiff cites no other time that he heard Fels use derogatory language about an individual's ethnicity or national origin, but believes that these two instances are sufficient to show that race was the reason Fels treated Plaintiff and the other Asian-Americans differently.
Polack is offensive slang and used as a disparaging term for a person of Polish birth or descent.
Plaintiff believes that Fels may have called Clark an "Irish man," and joked around about his Irish ancestry. (Wang Dep. at 125.)
Plaintiff's belief that Fels discriminated against him based on his race is primarily based on the way Fels treated him at work and evaluated his performance. Plaintiff felt that his annual evaluations were too negative and were not supported by the quality of his work. ( Id. at 111.) Plaintiff claims that he "would take a high degree of difficulty assignment and . . . if I'm not perfect, then he would attack." ( Id. at 99.) It is Plaintiff's belief that his co-worker's evaluations were not as negative: "Look at some other peoples. I don't know, I never get a chance to look at some other peoples, but I can feel if on one or two occasions, other people they have a little bit just you need to improve this area and this guy will jump, but only that one time I saw that, but since that time all those people are very, very happy after the annual evaluations." ( Id. at 112-13.) Plaintiff felt that Fels spoke to or about him in a "mocking" tone. Plaintiff describes this "mocking" as "during that annual conversation . . . he say very strict work do me . . . and ask me about, I need to improve this, I need to improve the other area. It seems to me this is a mocking tone. I don't remember some other situations he specifically talking about my name in a mocking tone, but it's very similar situations." ( Id. at 136.)
Plaintiff also believes that Fels racial animus was apparent in the way Fels interacted with Plaintiff. Plaintiff believed that when other new employees started they would have long conversations with Fels in his office or go out to lunch. Plaintiff never had this type of experience with Fels. ( Id. at 107.) Moreover, Fels would never say hello to Plaintiff when they crossed paths at work. ( Id. at 106.)
We are satisfied that Plaintiff's accusations regarding Fels' animus towards individuals of Asian descent are not sufficient to establish pretext or discriminatory animus. Plaintiff accuses Fels of three explicit acts that exhibit his discriminatory behavior: 1) using the term "China man"; 2) calling his wife a "polack"; and 3) telling Lee that there was no money in the budget to hire him again as an independent contractor, but then hiring other parties instead, including Lee's former employee Gary Lee. Even assuming that the race-related comments were made in a negative manner, they do not support the inference that the reasons for Plaintiff's dismissal were pretext. "Stray remarks by non-decision makers or by decision makers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of the decision." Pivirotto v. Innovative Sys., 191 F.3d 344, 359 (3d Cir. 1999) (quoting Ezold v. Wolf, Block Schorr Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992)). In Ezold, the Third Circuit found that several "crude and unprofessional" comments were insufficient, without more, to support a verdict of discrimination. 983 F.2d at 545-47. In Pivirotto, the plaintiff attempted to show that she was fired under circumstances which give rise to an inference of unlawful discrimination because she had heard the chairman of the company say that "women were unreliable employees because they get pregnant and because they get breast cancer." 191 F.3d at 358. The court determined that because the plaintiff offered no evidence that the remarks, which were not made in the context of any employment decision, reflected a generally discriminatory attitude that led to the plaintiff's discharge, they were insufficient to support a verdict of discrimination. Id. at 359.
In the instant case, the two alleged derogatory statements made by Fels are even more attenuated. While one of the independent contractors did hear Fels use the term "China Man," no evidence whatsoever has been introduced as to the context of the use of this term. Moreover, while it is unclear when this statement was made or in what context, it is certain that it was not made in the context of an employment decision. There have been no facts put forward that suggest that Fels used this derogatory term in relation to his decision making. The second alleged derogatory statement is even more attenuated. Plaintiff claims that he heard Fels refer to his wife as a "polack." While this term could be used in a negative way, we see no connection between the use of this term and purported discrimination against Plaintiff because of his Asian origin. In addition, Plaintiff testified that he might have heard Fels use the term "Irish Man" when talking with Clark. This fact, if anything, minimizes the effect of any perceived negative bias attached to Fels use of the term "China Man." It simply illustrates that Fels was prone to the use of such characterizations.
Plaintiff's accusation that Fels treated Lee unfairly based on his origin or ethnicity is not compelling. After not inviting Lee to bid on another contract, Fels directly contacted one of Lee's employees to continue to provide service to Defendant. This employee was an Asian-American. Plaintiff suggests that we can infer this action was taken because of Fels racial animus as the "[f]ailure to renew or continue Dr. Lee's contract was a direct financial harm to Dr. Lee, as was stealing his employee." (Doc. No. 11 at 25.) While we think that contacting Lee's employee directly may be an inappropriate way to conduct business, it does not support the inference that Fels was acting out of racial animus. It is unlikely that Fels would hire any individual of Asian origin if he possessed the racial animus Plaintiff accuses him of acting upon. Not only did Fels hire Gary Lee, he also hired another Asian-American from Ryan Nuclear, named Stan Chen. (Husted Aff. ¶¶ 26-27.)
Furthermore, we do not believe Plaintiff's complaints that Fels treated Plaintiff, Lee, and Chang differently than the other non-Asian employees satisfies Plaintiff's burden. Plaintiff's major complaints were that Fels had conversations and "joked around" with the non-Asian employees and that Fels was less critical of the non-Asian employees. The fact that Plaintiff perceived that Fels was more formal or less comfortable around the Asian employees that he hired is not a sufficient basis upon which a factfinder could reasonably either disbelieve the proffered reason or believe that an invidious discriminatory reason was more likely than not a motivating or determinative factor in Defendant's decision to terminate Plaintiff. Fuentes, 32 F.3d at 764.
Plaintiff's argues that he was treated differently in social situations because of his race. This argument is undercut by Plaintiff's own testimony. In one instance, Plaintiff suggests that his co-workers were able to gain different treatment because of their participation in the TMI golf league that took place every spring. (Wang Dep. at 152-53.) Nevertheless, Plaintiff admits that he never asked to pay in the golf league and after he got married he gave up the game of golf. ( Id.) Plaintiff believes that his co-workers received better performance reviews than he received despite the fact that he had more skill. Plaintiff has provided no objective evidence to support this conclusion. In fact, a review of Fels' evaluations of one of Plaintiff's co-workers demonstrates that they are filled with many of the same comments that Plaintiff received. See, e.g. (Doc. No. 9 Ex. W (Clark's reviews include criticism of his listening skills, and his ability to complete projects on time).) Moreover, Plaintiff's reviews, which he claims were overly negative, were replete with positive comments about his performance. See, e.g. (Doc. No. 9 Ex. S.10, S.11 (Fels specifically commenting that Plaintiff has improved his ability to meet target dates), S.12 (Fels specifically commenting that Plaintiff has shown improvement in his communication skills).)
Although Plaintiff may firmly believe that Fels did not like Plaintiff because he was Asian, Plaintiff has presented no evidence with respect to his relationship with Fels, from which a factfinder could conclude that Plaintiff's race or origin was the real reason for his termination.
3. Plaintiff's claim that his termination was a result of Husted's racial animus
Plaintiff contends that his termination was the result of Husted's racial animus. As one of the Simulator Analysts, Husted took part in the evaluation where Plaintiff was ranked last, substantially behind his peers. Plaintiff believes that Husted criticized him more and ranked him behind the other engineers because Husted did not like Plaintiff and other individuals of Asian descent.
Plaintiff's speculation about Husted is based on the way Husted treated Plaintiff and other Asian individuals. At one point during Plaintiff's employment, Husted in criticizing Plaintiff's work used derogatory comments about Plaintiff's race. (Lentz Dep. at 25.) Though Lentz did not think that Husted was a "racist," Lentz took such issue with Husted's treatment of Plaintiff that Lentz went to Fels to complain about Husted's remarks because he felt they were extremely vicious. ( Id. at 28, 36-37.) Despite the viciousness of these comments, Lentz felt that they were very much in line with Husted's reputation in the company for "being abusive to everyone." ( Id. at 27.)
There is no indication in any of the evidence submitted to the Court what derogatory language Husted used towards Plaintiff.
Plaintiff contends that Chang was treated similarly by Husted because of his race. On one occasion, Chang completed a project and submitted it to Husted. Upon receiving the project, Husted commented to Chang that the system did not work. (Chang Dep. at 20.) Chang was forced to prove to Husted that the project did, in fact, work. After being shown proof that the system worked, Husted agreed. ( Id.) After this one incident, Chang never had another problem with Husted. ( Id. at 36.) There is no evidence that Husted ever used any derogatory language with Chang.
Plaintiff believes Husted's racial animus was the reason Plaintiff received lower scores on the internal customer evaluation. We do not believe that the evidence supports such a conclusion. While it is true that Husted had a role in the evaluation process, he was only one of three individuals ranking the engineers in the Simulator department. It is impossible to tell exactly how Husted, Fraser, and Parnell each rated Plaintiff because the rankings were anonymous. However, the average score given to Plaintiff by each of the three evaluators was 4.4, 4.6, and 4.6. (Doc. No. 9 Ex. N.) Even assuming that Husted did possess some racial animus and gave Plaintiff the lowest of the three average scores, his ranking of Plaintiff was only marginally different than the two other evaluators. There is no evidence that either Fraser or Parnell possessed any racial animus towards Plaintiff. This evidence demonstrates that despite Husted's use of derogatory language towards Plaintiff, his rating of Plaintiff's abilities were consistent with the ratings given Plaintiff by two individuals who have not been alleged to have any racial animus towards Plaintiff or any other Asian individual.
Plaintiff offers two reasons why he believes the similar rating by Husted, Fraser, and Parnell does not support the conclusion that he was not terminated because of racial animus. First, he contends that Fraser lacked the ability to understand why some of Plaintiff's projects were late. Even assuming this is true, this does not explain how Husted's racial animus destroyed the objective value of Fraser and Parnell's ratings of Plaintiff's performance. Second, Plaintiff seeks to attack the results of the ratings by suggesting that Parnell and Fraser were influenced by Husted. (Doc. No. 11 at 9.) While Fraser acknowledged that the three evaluators discussed the evaluations generally, Fels instructed them that the rankings be done individually. (Fraser Dep. at 37.) Moreover, Fraser stated unequivocally that he ranked Plaintiff lower than his peers because of the amount of rework and deadline changes associated with Plaintiff's projects. ( Id. at 36.)
All three evaluators gave Plaintiff significantly lower scores than his three co-workers. Given this fact, there is simply no way a finder of fact could conclude that Plaintiff was terminated because he was Asian and not because of the performance reviews. The case of Silvestre v. Bell Atlantic Corp. 973 F. Supp. 475, 477 (D.N.J. 1997) is instructive in this regard. In Silvestre the plaintiff brought suit after he was terminated as a result of a corporate restructuring. As a part of the restructuring process, the mangers completed evaluations of the employees in plaintiff's group. Plaintiff received lower scores than his peers. Id. at 480-81. In response to this evaluation, plaintiff introduced various pieces of evidence, none of which "pointed to any inconsistencies in the defendants' evidence that would allow a jury to discredit the defendants' version of events." Id. at 483-84. We believe the same conclusion is compelled here. None of the evidence Plaintiff has put forth discredits the methodology or the conclusion reached by the evaluation. While Plaintiff may disagree with the scores given to him, he has introduced no evidence that shows that these scores were the product of discrimination.
IV. Conclusion
Plaintiff's contentions that the reasons for his termination were pretext are not justified by the evidence in this case. While Plaintiff and others were impressed with his work, there is significant evidence that compared to his peers, Plaintiff had greater problems with communication and with finishing projects in a timely manner. Moreover, the facts of this case demonstrate that but for the reorganization undertaken when Defendant purchased the TMI facility, Plaintiff would have continued to work at TMI because his work performance was acceptable. Notwithstanding, Plaintiff's allegations of the use of racially derogatory language, the alleged disparate treatment of individuals of Asian origin by Fels and Husted, and allegations of Plaintiff's superior level of skill vis a vis his peers, Plaintiff has failed to overcome Defendant's articulation of legitimate nondiscriminatory reasons for his termination. As hereinabove discussed Plaintiff must present evidence sufficient to establish that Defendants' proffered reasons for terminating his employment are "weak, implausible, contradictory or incoherent". He has failed to meet his burden. The unfortunate reality is that TMI was reorganizing and one employee in Plaintiff's department was going to be the victim of that reorganization. Defendant set up an objective process for determining who the victim would be. It was Plaintiff. It is not for this court or a jury to second guess that employment decision.
An appropriate Order follows.
ORDER
AND NOW, this ____ day of July, 2004, upon consideration of Defendant Amergen Energy Company's Motion for Summary Judgment (Doc. No. 9), and all papers filed in support thereof and opposition thereto, it is ORDERED that Defendant's Motion is GRANTED and Plaintiff Zeechung Gary Wang's Complaint is DISMISSED.IT IS SO ORDERED.