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Nazir v. United Airlines

October 9, 2009

IFTIKHAR NAZIR, PLAINTIFF AND APPELLANT,
v.
UNITED AIRLINES, INC. ET AL., DEFENDANTS AND RESPONDENTS.



(San Mateo County Super. Ct. No. CIV 458060). Hon. Marie S. Wiener.

The opinion of the court was delivered by: Richman, J.

CERTIFIED FOR PUBLICATION

Our Supreme Court has said that the purpose of the 1992 and 1993 amendments to the California summary judgment statute was "to liberalize the granting of motions for summary judgment." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) It is no longer called a "disfavored remedy." It has been described as having a salutary effect, ridding the system, on an expeditious and efficient basis, of cases lacking any merit. And that it has, as shown by the many cases affirming a summary judgment.

At the same time, the summary judgment procedure has become the target of criticism on a number of fronts. Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well-funded litigants. More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer's favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage. Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court.

Plaintiff Iftikhar Nazir, a man of Pakistani ancestry, worked for United Airlines (United) for over 16 years, during which time he was called scurrilous names and was the victim of numerous other indignities. Plaintiff reached the level of mechanic supervisor, the only person of color to ever hold that position. He was terminated in 2005 by his supervisor Bernard Petersen, on the basis that plaintiff violated United's zero tolerance policy in an incident with a female employee of an outside service provider. Plaintiff sued United and Petersen (when referred to collectively, defendants) in a complaint that, save perhaps for two battery and fraud causes of action, asserted rather typical claims grounded on harassment, discrimination, and retaliation. What ensued was hardly typical.

Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants' separate statement was 196 pages long, setting forth hundreds of facts, many of them not material-as defendants' own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants' moving papers were 1056 pages.

Plaintiff's opposition was almost three times as long, including an 1894-page separate statement, papers the trial court would later disparage as "mostly verbiage," a description with which, as will be seen, we disagree. Curiously, no such criticism was leveled at defendants' papers, not even those in reply, papers that defy description.

Defendants' reply included, and properly, their response to plaintiff's additional disputed facts. Defendants' reply also included, not so properly, a 297-page "Reply Separate Statement" and 153 pages of "Exhibits and Evidence in Support of Defendants' Reply." And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff's declaration, many of which objections were frivolous. In all, defendants filed 1150 pages of reply.

Five thousand, four hundred, fifteen pages of material were before the trial court which, following argument, issued its order granting summary judgment, the substance of which order began as follows:

"Upon due consideration... and having taken the matter under submission, [¶] The Court finds as follows: [¶] Despite its girth, Plaintiff's opposition to the separate statement of material facts is mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact." There followed several pages of discussion which did not consider the evidence favorably to plaintiff, as the law requires. Then, after granting summary judgment, the order ends with these two one-sentence rulings:

"2. Plaintiff's 47 evidentiary objections are OVERRULED. "3. Defendants' evidentiary objection No. 27 is OVERRULED, and the remainder of the Defendants' evidentiary objections are SUSTAINED."

This, then, is what is before us for de novo review: an order granting summary judgment that purports to sustain without explanation 763 out of 764 objections to evidence, in a record the likes of which we have never seen-not here, not in the combined 11 years of law and motion experience of the members of this panel.

Nevertheless, we deal with what is before us, and first hold that the trial court's "ruling" on defendants' objections was manifestly wrong. We then review the matter considering all the evidence properly in the record. And we reverse the summary judgment, concluding that eight causes of action must be decided by a jury.

THE GENERAL BACKGROUND

The Complaint

On July 7, 2006, plaintiff filed a complaint naming two defendants, United and Petersen. The face sheet of the complaint listed 11 causes of action, the first three of which were for harassment, discharge, and retaliation in violation of the California Fair Employment and Housing Act (FEHA). The body of the complaint, however, alleged 14 causes of action, with the second, fourth, and sixth causes of action being harassment, discrimination, and retaliation in "violation of public policy and the California Constitution" (public policy). In all, therefore, plaintiff alleged 14 causes of action, styled as follows: (1) harassment (religion, color, ancestry, and national origin); (2) harassment, public policy; (3) discharge (religion, color, ancestry and national origin); (4) discharge, public policy; (5) retaliation for opposing unlawful harassment and discrimination; (6) retaliation, public policy; (7) failure to take all reasonable steps to prevent discrimination and harassment; (8) discharge because of history or disability or perceived disability; (9) discharge in retaliation for taking leave under the California Familiy Rights Act ((CFRA); Gov. Code, § 12945.2); (10) breach of contract; (11) breach of covenant of good faith and fair dealing; (12) fraud; (13) battery; and (14) intentional infliction of emotional distress.

Plaintiff voluntarily dismissed the tenth and eleventh causes of action, and concedes he is not appealing as to the second cause of action. We thus have before us eleven causes of action.

The Girth in the Record: The Inappropriate Papers

On August 30, 2007, defendants filed a "Motion for Summary Judgment or, in the Alternative, Summary Adjudication," with moving papers totaling 1056 pages. Plaintiff filed his lengthy opposition which, as quoted above, the trial court described as "mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact."

Seemingly emboldened by this description, defendants' brief here begins this way: "As in Macbeth's soliloquy, Appellant's Opening Brief (AOB), like his summary judgment opposition below, is full of "sound and fury, [but ultimately] signifying nothing.' Despite filing an 1894 page(!) opposition separate statement, which the trial court found... in a manner deliberately calculated to obfuscate whether any "purportedly disputed facts were actually controverted by admissible evidence,' the trial court properly granted summary judgment in this case. As with Nazir's opposition statement, his AOB is "mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.' "

Passing over whether such disparagement is effective advocacy, the "girth" of materials before the trial court began with defendants, whose 1056 pages of moving papers were in great part inappropriate, beginning with the motion itself.

As noted, the motion sought summary adjudication of 44 issues. As apt here, a defense-side motion for summary adjudication is appropriate if one or more "cause of action has no merit." (Code of Civ. Proc., § 437c, subd. (f)(1).) Summary adjudication must completely dispose of the cause of action to which it is directed. (Ibid; see Hood v. Superior Court (1995) 33 Cal.App.4th 319, 321.) More than half of the 44 issues defendants sought to have summarily adjudicated fail to meet that burden, as they would not dispose of the claim.*fn1 The effect of this misconduct is not insignificant, illustrated by the fact that many of the "issues" all repeat to some extent many claimed "undisputed material facts," repetitive facts resulting in countless pages of utterly unnecessary-and necessarily unavailing-material.

The deficiencies in the motion pale in comparison to those in the separate statement. "Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed." (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.) The separate statement "provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts." (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) That hardly describes defendants' separate statement here.

The separate statement is, as noted, 196 pages. The exact number of supposedly material facts is impossible to know without actually counting them, as many of the facts are often repeated with the same numbers. But whatever the number, many of the facts are not material, as defendants concede, their separate statement beginning with this quizzical footnote: "The facts are deemed undisputed for purposes of this motion only and do not constitute any admission. For purposes of this motion only, Plaintiff's statements are accepted as true. Not all facts listed herein are necessarily material, as certain facts are asserted for background, foundational, information, or other purposes. Also, by including the facts set forth herein, Defendants are not waiving their right to challenge the admissibility of such facts in connection with this motion or for other purposes in this case."

We offer two observations about this footnote. The first is that it ignores the advice from the leading practice treatise:

"PRACTICE POINTER: [¶]... [¶] Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!" (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) § 10:95.1, p. 10-35.) The second is that there seems to be some disconnect between defendants' concession that "Plaintiff's statements are accepted as true" and defendants' 325 objections to plaintiff's testimony. In short, defendants' separate statement was particularly inappropriate.*fn2

The deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this. The reply also included 153 pages of "Exhibits and Evidence in Support of Reply." No such evidence is generally allowed. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) And, of course, there were the objections, 764 in all, which we discuss below. Suffice to say that there is plenty of blame for the "girth" the trial court criticized, most of which, we conclude, lies at the feet of defendants.

But neither the inappropriateness of defendants' papers nor their excessive volume is the worst aspect of those papers. No, that is the misleading picture those papers presented. An article co-authored by an experienced Superior Court judge has "intended to point out, in ascending order of seriousness, certain fatal errors and other problems [the court has] encountered" in connection with summary judgment motions, at the very top of which are motions "that attempt to "hide' triable issues of material fact." (Brenner & March, Use and Abuse of MSJs: A View from the Bench (2007) 49 Orange County Law 34, 37.) The article admonishes that a motion "should never cite evidence out of context in an effort to conceal a clearly triable issue of material fact," going on to cite two recent examples in that judge's court, one in a sexual harassment case, the other in one for wrongful termination. (Id. at p. 37.) Here, in vivid detail, is a third.

DISCUSSION

1. Summary Judgment Law and the Standard of Review

Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) As applicable here, moving defendants can meet their burden by demonstrating that "a cause of action has no merit," which they can do by showing that "[o]ne or more elements of the cause of action cannot be separately established...." (§ 437c, subd. (o)(1); see also, Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486-487.) Once defendants meet this burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact. (§ 437c, subd. (p)(2).)

On appeal "[w]e review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]" (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff's claims. (Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at p. 487.) As we put it in Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320: "[W]e exercise an independent review to determine if the defendant moving for summary judgment met its burden of establishing a complete defense or of negating each of the plaintiff's theories and establishing that the action was without merit." (Accord, Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.)

But other principles guide us as well, including that "[w]e accept as true the facts... in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them." (Morgan v. Regents of the University of California (2000) 88 Cal.App.4th 52, 67.) And we must " "view the evidence in the light most favorable to plaintiff[] as the losing part[y]' and "liberally construe plaintiff['s] evidentiary submissions and strictly scrutinize defendant's own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff['s] favor.' " (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97.)

This last principle could be problematic here, in light of the trial court's "ruling" on defendants' objections to evidence which, if affirmed, would mean that plaintiff's evidence was virtually non-existent, with little left to be viewed favorably. To determine what the evidence is, therefore, we begin by addressing the court's "ruling" on the objections to evidence.

2. The Ruling on Defendants' Evidentiary Objections Was Error

Plaintiff's opposition included 47 objections to defendants' evidence. Defendants' reply included 764 objections, set forth in 324 pages.*fn3 The trial court had issued a tentative ruling on the motion, which ruling made no mention of the objections. At the hearing neither counsel made any reference to the objections, and no request for any rulings. The court likewise made no mention of the objections, and at the conclusion of the hearing took the matter under submission. The court thereafter filed its order granting summary judgment, which order concluded, however inexplicably, with these two "rulings":

"2. Plaintiff's 47 evidentiary objections are OVERRULED. "3. Defendants' evidentiary objection No. 27 is OVERRULED, and the remainder of Defendants' evidentiary objections are SUSTAINED."

Paragraph 3, we conclude, was manifest error.

Acknowledging that some of defendants' objections could perhaps have been properly sustained, plaintiff contends that the trial court's blanket ruling sustaining all but one of defendants' objections was error. We could not agree more, and hold that all of plaintiff's admissible evidence is before us.

It is probably enough to note that the evidence is before us because defendants' objections could be considered waived, as not having been ruled on by the court, as we held in Demps v. San Francisco Housing Authority, supra, 149 Cal.App.4th at p. 578: "[W]e hold here... that a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections, and if it does not, the objections are deemed waived and the objected-to evidence included in the record."

It is true that the trial court "ruled," however conclusorily, that all objections save one were sustained. This is hardly a ruling, as it could not provide any meaningful basis for review. But even if what the trial court did is viewed as a ruling, the effect would be the same-plaintiff's evidence would be before us, as the ruling was wrong.

Defendants assert that we review evidentiary rulings on an abuse of discretion basis, citing Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694. Assuming without deciding that such standard applies,*fn4 we have no hesitancy in holding that the sustaining of all but one of defendants' 764 objections was an abuse of discretion. Put otherwise, there is no way that the trial court could properly have sustained 763 objections "guided and controlled by fixed legal principles." (Fasuyi v. Permatex (2008) 167 Cal.App.4th 681, 695.) There are many reasons why.

Some of the sustained objections did not even assert any basis for the objection! Some of the sustained objections were to plaintiff's testimony about his dates of employment, his religion, his skin color, and his national origin.

Over 250 of the sustained objections failed to quote the evidence objected to, in violation of California Rules of court, rule 3.1354.

Twenty-seven of the sustained objections were to plaintiff's brief, not his evidence.

Beyond all this, many of the objections were frivolous. Two illustrations should suffice. First, plaintiff testified that "[s]ome of the names [he] was called by [his] co-workers... were "sand nigger,' "sand flea,' "rag head,' and "camel jockey.' " Defendants lodged four objections, two of which were lack of foundation and hearsay.*fn5 No adjective is adequate to describe an objection that one who is called names lacks "foundation" to testify about them. And one does not need to be Wigmore to know that plaintiff was not introducing the names for their truth.

Second, plaintiff testified to the many times he talked to Petersen and others, bringing to their attention the various mistreatment he claimed to have suffered. One bit of testimony was this: "Throughout my tenure as a supervisor... I repeatedly complained to Mr. Petersen that I felt I was being discriminated against by the other white supervisors in the department. [¶] I also complained at least two times to Rick Wysong, Mr. Petersen's supervisor, on about December 5, 2001 and January 3, 2002, regarding Alister MacIness' and the other supervisors' harassment of me.... [¶]... In the meetings I told Mr. Wysong that I had already complained to Mr. Petersen about the problems I was experiencing since my elevation to supervisor... but that Mr. Petersen was letting the discriminatory conduct and behavior go unpunished. [¶] Mr. Wysong promised me that he would change Mr. Petersen's behavior. Mr. Wysong also said that he could not make Mr. Petersen and the other supervisors like me."

Plaintiff's testimony was set forth in four separate paragraphs, to each of which defendants objected. The objection to the first paragraph was "lacks foundation." The objections to the other three paragraphs were more grandiose: "Plaintiff's statement lacks foundation, is speculative, inserts improper opinion, argument, and conclusion (instead of evidentiary fact) and is therefore inadmissible. Cal. Evid. Code §§ 702, 800, 805; Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733; Hoover Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1136-1137 (a declaration as to someone else's intent is mere opinion or conclusion and cannot create a triable issue of fact); see also Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1240-1241." Can this be serious? Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?*fn6

Were all that not enough, objection number 27-the one objection the trial court overruled-should have been sustained, at least as to the second sentence.*fn7

In sum, the trial court's order sustaining all but one of defendants' objections was a manifest abuse of discretion. Thus, plaintiff's evidence, along with that of defendants, is in the record here, and we turn next to exposition of that evidence, evidence that, to put the matter in complete context, we set forth at some length.

3. The Facts

Plaintiff describes himself as is a dark-skinned man of Kuwaiti and Pakistani national origin and Pakistani ancestry. He is a practicing Muslim. Plaintiff began employment at United in April 1989 as a mechanic. In 2001 he was promoted to supervisor of mechanics in the facilities maintenance department, becoming the only person of color ever to hold that position.

Peterson was the manager of facilities, a position he had held since 1991. Petersen was plaintiff's immediate supervisor, and gave plaintiff his performance evaluations, which for the years 2001, 2002, and 2003 rated plaintiff as "achieved expectations." The year 2004 was a different story, as discussed below. It was Petersen who imparted the offer of promotion to plaintiff, and Petersen who terminated plaintiff, a fact heavily relied on by the trial court in rejecting plaintiff's discrimination claim. The complete facts surrounding the promotion and the termination will be set forth in connection with our discussion of that claim.

Plaintiff testified to countless instances of mistreatment directed at him over the years, including that his co-workers called him scurrilous names, including "to [his] face." Plaintiff was called, among other things, "sand nigger," "sand flea," "rag head," and "camel jockey." Co-workers brought pieces of sandpaper to plaintiff and asked him to point out where he was from.

The first specific instance of name-calling was in 1994, when United employee Nick Basille called plaintiff a "sand flea." According to plaintiff, a United supervisor was present and heard the statement, and said jokingly, while laughing, "Yes, you should not say that." The supervisor did not reprimand Basille. A few months later, Basille called plaintiff a "camel jockey," and a few months after that a co-worker asked plaintiff if people in his country "rode camels with saddles... when they turned 16."

In late 1995 United employee Rich Garvin told plaintiff words to the effect, "You f*cking Muslims are all the same and Bernie Petersen is right about you people."

Plaintiff immediately complained to supervisor Randy McKim, who promised to follow up and investigate. Plaintiff was never interviewed as part of any investigation, and approximately two weeks later he complained to Petersen himself that there had been no follow up. Plaintiff apparently repeated Garvin's comment to Petersen, who did nothing to deny the attribution to him, saying only that he could do nothing at that point because too much time had elapsed.

At one time a flyer was slipped under plaintiff's door. The flyer depicted Saddam Hussein with an arrow through his forehead, and was titled "Wanted, Butcher of Baghdad." Plaintiff reported this to Petersen, but was never interviewed about it by anyone. Another time, another flyer was slipped under plaintiff's door. This one depicted Saddam Hussein and one of his generals with the statement, "The war isn't going as planned. I need an expert at downing a large fleet of U.S. planes...." This was followed by a particularly obscene flyer. Again, no follow up.

In the late 1990s, plaintiff's car was vandalized in the United parking lot, the air having been let out of the tires and all four valve stems removed. The following day, flyers were posted on the employee bulletin boards throughout the Facilities Maintenance Department. The flyer had valves attached, and said: "Wade 1 Pak Man 0." According to plaintiff, the "Wade" reference was to United employee Pete Wade, the suspect in the vandalism, "Pak Man" a reference to plaintiff's Pakistani national origin. Plaintiff was never interviewed as part of any investigation into the incident, though the flyers were visible to everyone in the department, including Petersen.

In June 2001 United employee John Criswell called plaintiff "Paki";*fn8 again plaintiff complained to Petersen; again no one contacted plaintiff. Then, in early August Criswell told plaintiff words to the effect that "You need to be sent back to that camel where you came from." Plaintiff told United supervisor Alister MacInnes about this, and he promised to do something about it. Later that day, Criswell apologized.

Plaintiff also presented evidence concerning how in 2003 he had been reported to the Federal Bureau of Investigation as a "possible terrorist," this the result of a telephone message in Urdu that had been left for him, but on a co-worker's line that formerly belonged to plaintiff. The facts about this are somewhat convoluted, and ultimately nothing came of it. However, plaintiff did complain of the incident, via a June 24, 2003 e-mail to Sheila Asfaha in the human resources department.

Throughout, and repeatedly, plaintiff would complain to Petersen about the mistreatment, testifying to numerous conversations with Petersen about this. One specific conversation was on July 26, 2001, where Petersen confirmed that he knew plaintiff was being called derogatory names by co-workers, saying words to the effect, "People downstairs have made disrespectful remarks to me about you. I have ignored them in the past, but now I will not, and you should not tolerate this behavior either." But the behavior did not stop.

Plaintiff also complained from time to time to Wysong, Petersen's supervisor. At one point, plaintiff met with Wysong, and told him he had already complained to Petersen about the problems he was experiencing since his promotion, and that Petersen was letting the behavior go unpunished. Wysong promised that he would change Petersen's behavior, noting, however, that he could not make "Petersen and the other supervisors like me."

Plaintiff also complained to employees in United's human resources department, including to Asfaha. Plaintiff told Asfaha about the mistreatment to which he was being subjected at the hands of his co-workers. He also told Asfaha that he did not think Petersen supported him, a feeling he had from the time he was first promoted to supervisor.

By mid-2004 plaintiff had reached the point where, he claimed, he could not take anymore and "went outside of United's human resources department to complain to Sandra Rossi of United's employee assistance program regarding the discrimination and harassment [he] was experiencing." Plaintiff met with Rossi on August 16, 2004 and described the mistreatment, including from his manager Petersen. Plaintiff took a test Rossi provided, the results of which, according to plaintiff, showed he was depressed. Rossi recommended the names of medical professionals, and also recommended that plaintiff speak to Francine Banford, the director of human resources. He did, on August 20, 2004, and among other things told Banford that the discriminatory mistreatment from his peers and Petersen, and Petersen's failure to investigate or take any action in response to his complaints, was causing him stress. In accordance with Rossi's advice, plaintiff began seeing a therapist.

On September 20, 2004, plaintiff went to Petersen to tell him personally that he was taking a medical leave of absence at the direction of his doctor, Laura Davies, M.D. According to plaintiff, he told Petersen unequivocally that treatment he received from his co-workers in the facilities maintenance department had made him ill and he needed professional help to recover. Plaintiff began CFRA leave that day, and would not be released to return to work until January 2005. During the leave, plaintiff was in contact with United's own doctor, Joseph Semkiu, M.D., and with Rossi, who monitored the situation. But even the leave period was not without incident.

In mid-December 2004, plaintiff met with Dr. Semkiu, Rossi, and Peterson to coordinate his return to work. They discussed the conditions in the facilities maintenance department, and Petersen asked plaintiff why he would want to return to his management position if it caused him so much pain, suggesting that he take a demotion back to mechanic. Plaintiff refused, and on January 11, 2005, returned to work.

On February 4, 2005, plaintiff talked to Petersen about plaintiff's need for more electricians on his crew. Petersen's response was to "make fun" of plaintiff and to "suggest that [he] should slap a tool belt on one of [his] lead mechanics and get him to work harder." Plaintiff complained to Anita Davis of the human resources department.

On March 7, 2005, plaintiff was given his 2004 performance evaluation (dated February 23, 2005), in which he was rated as "needs improvement," the first time he had ever been rated less than "meets expectations." Plaintiff discussed the evaluation with Petersen, who told plaintiff he "should try harder to make friends with the people who were responsible for harassing" him.

On April 4, 2005, plaintiff asked Petersen if he could work four hours and train for four hours; Petersen said "no." Plaintiff reminded Petersen that he needed this training to comply with his goals for his performance evaluation, but Petersen said he would approve the request only if plaintiff contacted all of the other supervisors and gave them the opportunity to also go for training.

In April 2005 plaintiff met with Victoria Keliihoomalu, the new human resources liaison to the facilities maintenance department. Plaintiff complained about the mistreatment he was enduring, and gave Keliihoomalu examples of the types of things to which he had been subjected. Plaintiff also told her that he did not think he would ever be treated fairly in his circle of management, and that he considered the performance review he received from Petersen on March 7, 2005, just two months after his return from extended medical leave, to be retaliation.

Plaintiff testified that he not only complained about Petersen to various people at the United facility where he worked, but on occasion he would complain to "higher management" or "world headquarters" in Illinois. Petersen was asked about this at deposition, whether plaintiff told him he had made a complaint about him to higher management. Petersen initially answered, however evasively, "he had a discussion, they asked him questions." Petersen later admitted-indeed, his own notes confirmed-that as early as 2002 plaintiff had "sent information to United Airlines World Headquarters against [Petersen] and [his] lack of action on individuals [who] did not respect him." Petersen also admitted he had heard that plaintiff complained to Larry Smith that "members of management, including Petersen, were prejudiced." And, Petersen admitted, at no time did he "ever discipline anyone for anything they did" regarding plaintiff.

On April 18, 2005, plaintiff discovered that his office had been vandalized, that his computer had been tampered with and the lock on his door glued shut. Plaintiff complained to ...


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