Free Findings of Fact & Conclusions of Law - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court held a bench trial in this matter. (Dkts. 160, 162 - 165, 166 -169.) At the conclusion of trial, the parties submitted proposed Findings of Fact and Conclusions of Law. (Dkts. 188, 189, 192, 193.) // // // //
Document 196 Filed 01/19/2007 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) Plaintiff, ) ) vs. ) ) ) Intel Corporation, ) ) Defendant. ) ) ) ) Intel Corporation, ) ) Counterclaimant, ) ) vs. ) ) Ammar Halloum and Sawsan Hamad, ) ) Counterdefendants. ) ) _________________________________ )

Ammar Halloum,

No. CIV 02-2245-PHX-EHC FINDINGS OF FACT CONCLUSIONS OF LAW AND JUDGMENT

Case 2:02-cv-02245-EHC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's Initial Hiring

Findings of Fact

1. On October 23, 2000, Intel Corporation ("Defendant" / "Company") hired Ammar Halloum ("Plaintiff") as a Manufacturing Systems Spares Group Leader in the Manufacturing Systems Group ("MSG") of the Company's Manufacturing Department. 2. Plaintiff's principal responsibilities included reducing costs through more effective management of spare parts used in the manufacturing equipment at the Company's Fab 12 facility in Chandler, Arizona. 3. Plaintiff was hired by, and reported to, Paul Callaghan, the Manufacturing System Department Manager. 4. In November of 2000, the Company's standard background investigation (conducted for all new hires) indicated that Plaintiff had a pending criminal matter relating to an alleged assault on his wife. 5. Sherri Jacob, the Company Human Resources Representative assigned to support MSG, presented the findings to Plaintiff and Callaghan. Plaintiff contended that the matter was being reported in error and that he could provide documentation to prove it. Jacob and Callaghan agreed to give Plaintiff a week to produce the documentation. 6. When Plaintiff did not produce the documentation within a week, Jacob recommended to Callaghan that Plaintiff's employment should be terminated. 7. Callaghan disagreed with Jacob's recommendation and asked that Plaintiff be given additional time to resolve the matter. The Company gave Plaintiff additional time to produce the relevant documentation. 8. When Plaintiff produced the relevant documentation, Human Resources was satisfied that the matter was resolved and Plaintiff was permitted to remain employed with the Company. /// ///

-2Case 2:02-cv-02245-EHC Document 196 Filed 01/19/2007 Page 2 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Early Employment 9. All new hires go through a probationary period upon hiring. At the end of the probationary period, the new employee's performance is reviewed and the Company decides whether to pass the employee through probation or terminate his/her employment. 10. Plaintiff's probationary period ended in July of 2001. 11. On June 22, 2001, Callaghan sent Jacob an email inquiring about the possibility of extending Plaintiff's probationary period in order to have more time to evaluate Plaintiff's performance. 12. Jacob informed Callaghan that extending an employee's probation was an exception to the Company's standard procedure. With that, Callaghan decided against extending Plaintiff's probationary review. 13. On July 18, 2001, Callaghan presented Plaintiff with a successful probationary review. The written probationary review, provided by Callaghan, nevertheless contained several areas in which Plaintiff's performance needed to improve. 14. During the first nine months of employment, there is evidence that Plaintiff succeeded in his job and in executing his responsibilities. There is also evidence, however, that Plaintiff's performance was criticized and needed improvement. Employment after Probationary period 15. On September 10, 2001, Plaintiff and Callaghan met to discuss Plaintiff's Individual Performance Summary ("IPS"). Plaintiff presented a draft of his own IPS to Callaghan, as Callaghan had requested. Callaghan would then make changes, if necessary. At the conclusion of this process, Callaghan did make changes to Plaintiff's IPS. Callaghan made additions to the section titled "Areas for Development." 16. Callaghan did not provide a copy of the revised IPS to Plaintiff until January of 2002. 17. On October 12, 2001, Callaghan wrote an email to the Fab 12 email list (approximately 25 people) that read in its entirety:

-3Case 2:02-cv-02245-EHC Document 196 Filed 01/19/2007 Page 3 of 14

1 2 3

Folks, just wanted to recognize in a "cheap" but meaningful way your contribution to the great Q3 spending results at Fab 12 . . . grab a Donut in My/Kris's office . . . chocolate donuts are in short supply as we try to match the Taliban for [best-in-class] . . . Regards, Paul 18. Around that time, Plaintiff requested a vacation that would begin at the end of

4 November, 2001. Plaintiff requested to take four weeks vacation from his accumulated 5 leave to go to the United Arab Emirates to visit extended family. 6 19. Callaghan expressed reservations about Plaintiff taking four consecutive 7 weeks of vacation at the end of the year considering the cost savings goals the Company 8 wanted to accomplish and Plaintiff's role as group leader. Plaintiff and Callaghan agreed 9 that Plaintiff would take only three weeks of vacation. Plaintiff was not critical of 10 Callaghan for this compromise. 11 20. Plaintiff returned from his vacation on Monday, December 10, 2001. 12 21. At some time, Callaghan asked Plaintiff if he ever considered returning to the 13 United Arab Emirates permanently. Plaintiff told Callaghan that he had not and that the 14 United States was his permanent home. 15 22. On Plaintiff's first day back from vacation, Plaintiff attended a meeting. After 16 the meeting, Callaghan criticized Plaintiff for his lack of participation in the meeting. 17 Plaintiff told Callaghan that his lack of participation was likely the result of jet-lag from 18 his trip. Callaghan told Plaintiff that this could not continue and that Plaintiff would have 19 to participate more meaningfully in the future. 20 23. Plaintiff called in sick for the next four days. Plaintiff returned to work on 21 Monday, December 17, 2001. 22 24. On that day, Callaghan told Plaintiff that they needed to talk. They met later 23 the same day. 24 25. At the meeting, Callaghan told Plaintiff that his level of company involvement 25 was not to standard. Callaghan told Plaintiff that Callaghan could trust his other group 26 leaders with leading and completing projects that he would not be comfortable assigning 27 to Plaintiff based on his current performance. Callaghan perceived this as a problem. 28 -4Case 2:02-cv-02245-EHC Document 196 Filed 01/19/2007 Page 4 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

January 2002 CAP 26. Callaghan, after speaking with others, decided to place Plaintiff on a Corrective Action Plan ("CAP"), a review process where the management institutes performance expectations and the employee's performance is reviewed. The CAP was completed and signed by Callaghan and Kendall McNail, Fab 12's Human Resources Manager, on December 28, 2001. E. J. Peiker, Callaghan's supervisor, signed the CAP on January 2, 2002. 27. On January 2, 2002, Callaghan presented Plaintiff with the CAP where they discussed the contents. 28. The January 2, 2002 CAP was a 90-day period of review where Plaintiff was required to meet certain job expectations. 29. Earlier that day on January 2, 2002, Plaintiff complained to Human Resources that Plaintiff was being discriminated against by Callaghan based on his race and religion. That initiated what is called the Company's "open-door" investigation. 30. When later the same day Callaghan presented the CAP, Plaintiff felt that he was being retaliated against in response to Plaintiff's initiation of the open-door investigation. 31. During the next several weeks, Sherri Jacob conducted interviews with approximately 13 employees, including Plaintiff, Callaghan, and all of Plaintiff's subordinates. The open-door investigation lasted approximately three weeks. 32. On January 11, 2002, Plaintiff filed charges of discrimination with the EEOC. 33. In mid-January, 2002, Plaintiff's subordinates expressed concerns to Callaghan that Plaintiff was pressuring them to provide positive responses in their interviews with respect to the ongoing open-door investigation. 34. On January 25, 2002, Callaghan, Jacob, and Plaintiff reviewed Plaintiff's performance and progress on the CAP. At this meeting, Callaghan presented the allegations that Plaintiff was pressuring his subordinates with respect to the open-door

-5Case 2:02-cv-02245-EHC Document 196 Filed 01/19/2007 Page 5 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

investigation. Callaghan warned Plaintiff that such impropriety could result in Plaintiff's termination. 35. At the end of that meeting, Plaintiff reported feeling ill. 36. On January 28, 2002, Plaintiff met with Jacob about her findings in the opendoor investigation. Jacob related to Plaintiff that she did not find evidence of discrimination against Plaintiff. At the close of the meeting, Plaintiff again indicated that he was not feeling well. Medical Leave of Absence 37. After consulting with the company's Occupational Health nurse, Pam Foster, on January 30, 2002, Plaintiff took a medical leave of absence beginning on February 1, 2002. 38. In March, 2002, while Plaintiff was on medical leave, he contacted the Securities and Exchange Commission. Plaintiff alleged that Intel was using inappropriate accounting practices. 39. The SEC initiated an investigation into the matter, but ultimately found no wrong-doing on the part of Intel. 40. On April 10, 2002, in anticipation of Plaintiff's return to work, Jacob met with Plaintiff's subordinates to discuss Plaintiff's return to work. 41. Plaintiff's subordinates expressed concern about Plaintiff returning to a managerial position. Jacob prepared a document called "Hopes and Fears," and another document containing a section titled "Ground Rules going forward," to be presented to Plaintiff upon his return to work. 42. On April 23, 2002, Plaintiff called Foster and informed her that he had been released to return to work, but that he had a medical restriction directing him to avoid mental stress or an environment leading to anxiety. 43. Foster told Plaintiff that she would need to get clarification of this work restriction from Plaintiff's doctors. Plaintiff faxed Foster a signed release from his physician, Dr. Liao, on April 24, 2002. -6Document 196 Filed 01/19/2007 Page 6 of 14

Case 2:02-cv-02245-EHC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

44. On April 29, 2002, Plaintiff returned to work. Plaintiff met with Callaghan and another Company Human Resources Representative. There was disagreement about whether Plaintiff would be return to his job subject to the requirements of the CAP. 45. Over the next several weeks, the Company corresponded with Plaintiff's health care providers concerning the conditions under which Plaintiff could return to work. Plaintiff did not return to work during this time. 46. On July 18, 2002, Jacob sent Plaintiff an email indicating that, because Plaintiff would not return to work under the CAP, the Company would process Plaintiff's resignation and buyout, effective July 25, 2002. 47. On July 22, 2002, Plaintiff returned to work. Security did not let Plaintiff in the building. The next day, Plaintiff met with Callaghan and Jacob to discuss his circumstances. Plaintiff indicated his willingness to come back to work subject to the CAP. Return to Work 48. Callaghan and Jacob contacted Plaintiff on August 14, 2002 and informed him that he could return to work on August 19, 2002. Plaintiff's new role would not be as Group Leader but as an "individual contributor," i.e., an individual who does not directly supervise other employees. 49. Callaghan advised Plaintiff that he would still focus on cost reduction and his CAP would be revised and updated to reflect the change in his responsibilities. Plaintiff was also advised that he could take advantage of the Company's Voluntary Separation Package. 50. There is evidence that at least one of the requirements added to the August 19, 2002 CAP would have been difficult if not impossible for Plaintiff to achieve. 51. When Plaintiff returned to work, he discovered that the Company had accessed his laptop despite being password-protected. Plaintiff also claimed that files relating to his doctoral work were missing and unaccounted for.

-7Case 2:02-cv-02245-EHC Document 196 Filed 01/19/2007 Page 7 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

52. On September 3, 2002, Plaintiff returned to work to execute the Voluntary Separation Package documents. Plaintiff's Relocation from Tucson Upon Hiring 53. Prior to being hired by Intel, Plaintiff worked for IBM in Tucson, AZ. 54. As a new Intel hire, Plaintiff was eligible for certain relocation benefits. 55. On October 13, 2000, Plaintiff signed Intel's Relocation Agreement. 56. Plaintiff represented in that agreement that he and his family would be relocating from Tucson, AZ to Chandler, AZ. 57. The relocation agreement provided that benefits would be based upon how many family members would be required to be moved. 58. Plaintiff represented that five family members, i.e., his wife and four children, would accompany Plaintiff in relocating from Tucson to Chandler. 59. Intel provided Plaintiff $17,800 in relocation benefits. Of that amount, $8,000 was attributable to Plaintiff's representation that five other family members would be accompanying him in his relocation from Tucson to Chandler. 60. During the time Plaintiff worked for IBM in Tucson, Plaintiff's family resided in Tempe, AZ. 61. Plaintiff was subsequently prosecuted criminally for the representations he made in the Relocation Agreement. Plaintiff pleaded guilty to theft in that case. 62. As part of his sentence in the criminal case, Plaintiff reimbursed Intel $7,045 of the $8,000 overpayment he received as the result of Plaintiff's misrepresentation. 63. The amount remaining due from Plaintiff to Intel is $955. 64. Plaintiff introduced evidence that he terminated a lease on an apartment in Tucson when he accepted the job with Intel. 65. Plaintiff introduced evidence that his early lease termination fee was $610.00 and his expenses upon moving out of his apartment totaled $955.61.

-8Case 2:02-cv-02245-EHC Document 196 Filed 01/19/2007 Page 8 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

66. Plaintiff estimated that Intel owed Plaintiff approximately $937 for early lease termination and lost deposit. Plaintiff suggests this amount should offset any remaining amount due Intel. 67. Plaintiff did not provide evidence that he actually paid the early lease termination fee. Conclusions of Law Discrimination 1. Plaintiff alleges that Defendant unlawfully discriminated and retaliated against him in violation of Title VII. Plaintiff alleges Defendant created a hostile work environment in violation of Title VII. 2. Under Title VII, a prima facie case of unlawful discrimination requires (1) that the plaintiff is in a protected class, (2) he was qualified for his position, (3) he was subject to an adverse employment action, and (4) similarly situated individuals outside his protected class were treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). 3. If a plaintiff sets forth a prima facie case, the employer then must present a legitimate, non-discriminatory motive for taking its adverse action against the plaintiff. Chuang v. University of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000). 4. If the employer does so, the plaintiff must show that the articulated reason is pretextual "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. (internal citations omitted). /// ///

-9Case 2:02-cv-02245-EHC Document 196 Filed 01/19/2007 Page 9 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

5. Even though the defendant must set forth a legitimate, non-discriminatory motive for its employment decision, "the burden of proof remains with the plaintiff at all times." Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003). 6. When an employer's actions are based upon both lawful and unlawful motives, liability may still attach. 42. U.S.C. § 2000e-5(g)(2)(B) as amended in 1991. 7. A defendant is liable if the plaintiff shows that unlawful discrimination was a "motivating factor" in the challenged decision or action, "even though other factors also motivated" the challenged action or decision, and regardless of whether the case was one of "pretext" or "mixed motives." 42 U.S.C. § 2000e-2(m). 8. Where the defendant would have made the same decision in the absence of a discriminatory motive, the plaintiff's remedies are limited under the Act to declaratory or injunctive relief, as well as attorneys' fees and costs. 42. U.S.C. § 2000e-5(g)(2)(B) (modifying Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)); see also Washington v. Garrett, 10 F.3d 1421, 1432 n.15 (9th Cir. 1993), for a discussion of remedy limitations under the 1991 Act. 9. In this case, Plaintiff alleges Defendant discriminated against Plaintiff after September 11, 2001. The Court, having reviewed the record, finds Plaintiff has failed to meet the burden of persuasion that Plaintiff's race and/or religion were the sole or even motivating factors in Defendant's employment decisions. Plaintiff failed to demonstrate by a preponderance of the evidence that Defendant and its management took the actions it did on the basis of Plaintiff's race, and not for some other legitimate, performance-related reason. Retaliation 10. Title VII prohibits retaliation against an individual because he has opposed a practice made unlawful under Title VII. 42 U.S.C. § 2000e-3. 11. To make out a prima facie case of retaliation, (1) a plaintiff must establish that he undertook a protected activity under Title VII, (2) his employer subjected him to an

- 10 Case 2:02-cv-02245-EHC Document 196 Filed 01/19/2007 Page 10 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

adverse employment action, and (3) there is a causal link between the those two events. Vasquez v. County of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003). 12. In this case, Plaintiff alleges retaliation for initiating the open-door investigation within the Company. Plaintiff claims the January 2, 2002 CAP was the form of that retaliation. 13. The Court finds that Plaintiff has not proved by a preponderance of the evidence that the January 2, 2002 CAP was retaliation for Plaintiff's charge of discrimination. 14. Plaintiff also alleges that the treatment he received on and after April 29, 2002 was in retaliation for his attempt to blow the whistle on the Company's accounting practices to the SEC. 15. The Court finds that Plaintiff has not proved that Defendant's conduct after April 29, 2002 was in retaliation for Plaintiff's reporting Defendant's accounting practices to the SEC.1 16. The Court finds that Plaintiff has failed to prove by a preponderance of the evidence that Defendant retaliated against Plaintiff for activities protected by Title VII. Hostile Work Environment 17. Plaintiff alleges that Defendant subjected him to a hostile work environment in violation of Title VII. 18. To prevail on a hostile workplace claim premised on either race or sex, a plaintiff must show: (1) that he was subjected to verbal or physical conduct of a racial or sexual nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and
1

Moreover, retaliation for whistle-blowing is not actionable under Title VII. Because only Plaintiff's Title VII claims are before the Court, there is no remedy even if Plaintiff had proved such retaliation. See, e.g., Jamil v. Secretary, Dept. of Defense, 910 F.2d 1203, 1207 (4th Cir. 1990) ("Title VII is not a general 'bad acts' statute; it only addresses discrimination on the basis of race, sex, religion, and national origin, not discrimination for whistleblowing."). - 11 Document 196 Filed 01/19/2007 Page 11 of 14

Case 2:02-cv-02245-EHC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

create an abusive work environment. Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003). 19. To determine whether conduct is sufficiently severe or pervasive to violate Title VII, the courts look at "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 27071 (2001)). 20. In this case, Plaintiff has failed to show that his work environment was sufficiently severe or pervasive so as to violate Title VII. Further, Plaintiff has failed to show that the unfriendliness that did exist between Plaintiff and Callaghan was the result of Plaintiff's race and/or religion.

Defendant's Counterclaims 21. Defendant filed counterclaims against Plaintiff alleging breach of contract, unjust enrichment, and fraud/deceit. Breach of Contract 22. The Relocation Agreement that forms the basis for Defendant's breach of contract claim states that its "enforcement and interpretation . . . is governed by California state law." 23. In order to prevail on a breach of contract claim under California law, a plaintiff must establish the existence of a contract, its own performance under the contract, the defendant's breach of the contract, and resulting damages. First Commercial Mortgage Co. v. Reece, 108 Cal. Rptr. 2d 23, 33 (App. 2001).2

The elements of a claim for breach of contract are essentially the same under Arizona law. Graham v. Asbury, 112 Ariz. 184, 185 (1975). - 12 Document 196 Filed 01/19/2007 Page 12 of 14

2

Case 2:02-cv-02245-EHC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fraud.

24. Plaintiff breached the parties' contract when Plaintiff misrepresented the number of family members that would be accompanying him in his move from Tucson. 25. The Court finds Plaintiff breached his contract with Defendant.3 Fraud / Deceit 26. To prevail on a claim for fraud, a plaintiff must establish (1) a representation, (2) its falsity, (3) its materiality, (4) the defendant's knowledge of its falsity, (5) the plaintiff's ignorance of the truth, (6) the defendant's intent that the plaintiff rely on the representation, (7) the plaintiff's right to rely on it, (8) plaintiff's actual reliance, and (9) consequent and proximate damage. Echols v. Beauty Built Homes, 132 Ariz. 498, 500 (Ariz. 1982). 27. Based upon the record, the Court finds that Plaintiff committed the tort of

28. The Court, however, will not award punitive damages in favor of Defendant against Plaintiff. The Court took under advisement several objections to the admission of evidence and exhibits. Accordingly, IT IS ORDERED ruling in favor of Defendant on its breach of contract claim. IT IS FURTHER ORDERED that the Clerk shall enter judgment in favor of Defendant and against Plaintiff in the amount of $955.00. IT IS FURTHER ORDERED DENYING Plaintiff's "Motion" To Show Cause For Failing To Appear For Pretrial Conference. (Dkt. 120.) IT IS FURTHER ORDERED DENYING Plaintiff's Motion in Opposition to Defendant's Supplemental Disclosure Statement. (Dkt. 141.)

Because the Court finds Plaintiff breached his contract with Defendant, the Court need not address Defendant's unjust enrichment claim. - 13 Document 196 Filed 01/19/2007 Page 13 of 14

3

Case 2:02-cv-02245-EHC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 .

IT IS FURTHER ORDERED DENYING Defendant's Motion In Limine Regarding Transcript Testimony of Carla Minnard. (Dkt. 159.) IT IS FURTHER ORDERED DENYING as moot Plaintiff's Motion to Amend His Damages Computation To A Lessor Amount. (Dkt. 161.) IT IS FURTHER ORDERED DENYING as moot Defendant's Motion for Judgment as a Matter of Law. (Dkt. 164.) IT IS ORDERED overruling Defendant's objection and admitting exhibit 75. IT IS FURTHER ORDERED admitting exhibit 93 to the extent that it is referenced on the record. IT IS FURTHER ORDERED admitting exhibit 107. IT IS FURTHER ORDERED admitting exhibit 213. IT IS FURTHER ORDERED that Plaintiff take nothing against Defendant and that judgement be entered against Plaintiff.

DATED this 18th day of January, 2007.

- 14 Case 2:02-cv-02245-EHC Document 196 Filed 01/19/2007 Page 14 of 14