Free Motion for Judgment - District Court of Arizona - Arizona

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Michael D. Moberly ­ 009219 Andrea G. Lisenbee - 019882 Attorneys for Defendant/Counterclaimant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA AMMAR HALLOUM, Plaintiff, vs. INTEL CORPORATION, Defendant. INTEL CORPORATION, Counterclaimant, vs. AMMAR HALLOUM and SAWSAN HAMAD, Counterdefendants. MOTION In accordance with Rule 50 of the Federal Rules of Civil Procedure,
DEFENDANT/COUNTERCLAIMANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW

No. CIV-02-02245-PHX-EHC

20 defendant/counterclaimant Intel Corporation ("Intel" or the "Company") hereby moves 21 for judgment in its favor as a matter of law on the plaintiff's remaining claims. This 22 motion is supported by the following Memorandum of Points and Authorities. 23 24 25 26

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MEMORANDUM OF POINTS AND AUTHORITIES The Plaintiff Was Not Treated Less Favorably Than Any Similarly Situated Individual Outside The Protected Class The typical means of establishing a Title VII discrimination or retaliation claim is to show that other similarly situated individuals outside the protected class were treated more favorably than the plaintiff. See Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) ("To establish a prima facie case under Title VII, a plaintiff must offer proof . . . that the plaintiff's employer treated the plaintiff differently than a similarly situated employee who does not belong to the same protected class as the plaintiff."). The plaintiff has offered no such evidence in this case. In fact, the

evidence the plaintiff has presented establishes that just the opposite is true. The only witness he called who worked under the same supervisor as he did was Dorie Hoffman. Ms. Hoffman testified that she is Anglo and not a Muslim, and she did not claim to have made a prior claim of discrimination that would bring her within the protection of Title VII's anti-retaliation provisions. Ms. Hoffman also testified that she received (and, like the plaintiff, disagreed with) the same type of performance management from Mr. Callaghan as the plaintiff received. As a nonexempt employee, Ms. Hoffman received a written warning rather than the corrective action plan that was presented to Mr. Halloum, who was an exempt employee. However, she indicated that the purposes of these two performance management tools, both of which provided 90 days for the employees to improve their performance, is essentially the same. See also Exhibit 18. Accordingly, the plaintiff's Title VII claims cannot stand on this basis. See Bodett v. Coxcom, Inc., 366 F.3d 736, 744 (9th Cir. 2004) (affirming summary judgment for the employer where the plaintiff "failed to present any legitimate

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`comparator' evidence on her religious discrimination claim"); Mendoza v. Sysco Food Services of Arizona, Inc., 337 F. Supp. 2d 1172, 1182-83 (D. Ariz. 2004) ("Plaintiff fails to establish a prima facie case of disparate treatment because he has not alleged that similarly-situated employees not in his protected class were treated more favorably."); cf. Agee v. Northwest Airlines, Inc., 151 F. Supp. 2d 890, 894 (E.D. Mich. 2001) ("[B]ecause Plaintiff was treated the same as a similarly situated individual outside the protected class, he cannot make out a prima facie case . . . ."). II. The Plaintiff Has Not Presented Sufficient Direct Evidence of Discrimination
A.

No "Third Person" Evidence Supports The Plaintiff's Claim of Discrimination. The principal alternative means of establishing a Title VII claim is

through direct evidence of discrimination. See Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1074 n.2 (9th Cir. 1986) ("A prima facie case may also be established through the production of direct evidence of discrimination."); see also Mendoza, 337 F. Supp. 2d at 1182 & n.3. The plaintiff's case also fails on this ground. Again, the only witness he called who actually worked with him was Ms. Hoffman. Not only did Ms. Hoffman testify that she never saw Mr. Callaghan mistreat the plaintiff, but she actually left Intel's employment a few months before the September 11 terrorist attacks that the plaintiff claims prompted his alleged mistreatment. The only other "third person" evidence the plaintiff presented on this point was Ms. Jacob's summary of her interview of one of the plaintiff's subordinates, Tim Theodoseau, and that evidence directly refutes the plaintiff's claim of discrimination. In particular, Mr. Theodoseau noted in his interview that the plaintiff had asserted that Mr. Callaghan's alleged treatment of him was attributable to "the 9/11 thing," but informed Ms. Jacob that this was not so. Exhibit 46, at p. 2. While acknowledging that there

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appeared to be a "personality type issue" between the plaintiff and Mr. Callaghan, Mr. Theodoseau specifically indicated that the way in which Mr. Callaghan treated the plaintiff was "not due to religion or national origin." Id. at pp. 2, 4. Mr. Theodoseau instead attributed the apparent conflict between the plaintiff and Mr. Callaghan to the plaintiff's performance problems, which Mr. Theodoseau indicated were "already on the table" at the time of the September 11 terrorist attacks. Id. at p. 4. In fact, Mr. Theodoseau told Ms. Jacob that by the time he joined the plaintiff's work group in April 2001, "the word on the street was that Ammar doesn't know what he is doing." Id. at pp. 1, 4. Mr. Theodoseau specifically identified some of the plaintiff's performance deficiencies. He noted, for example, that the plaintiff "doesn't know Intel systems [like] his peers do," and observed that "[w]hen Ammar goes to meetings he doesn't come across as being knowledgeable, experienced or capable." Id. at p. 2. Mr. Theodoseau also indicated that as a result of the plaintiff's performance problems, not only Mr. Callaghan, but the plaintiff's other subordinates, Dot Townsend and Christian Hess, as well as other group leaders and management employees, did not think "favorably" of him. Id. at p. 4. Mr. Theodoseau elaborated on this fact in the following terms: Ammar doesn't have the buy in from peers and team members. Ammar doesn't run meetings very well, he doesn't come across as secure[.] [I]t appears that he lacks Intel meeting knowledge and doesn't understand his business. Paul does have a point here. * * *

Ammar needs to learn Intel Culture, how to run a meeting, 7 step problem solving, he needs to learn how to multitask in the Intel environment. When he thinks he has too much work he collapses. . . . Sometimes when he speaks at [a] meeting he doesn't

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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 Id. at pp. 3-4.
B.

come across as knowledgeable. We have all seen this; sometimes he publishes things showing commitments that are not real. He needs to understand who the stakeholders are.

The Plaintiff's Own Assertion That He Was Subjected to Discriminatory Treatment Is Irrelevant. Because the plaintiff has presented no other evidence to support his claim

of discriminatory treatment, the Court is left with only the plaintiff's own assertion that he was subjected to discrimination. That assertion is, in turn, premised primarily upon the plaintiff's contention that Mr. Callaghan's dissatisfaction with his performance was unwarranted and pretextual. However, the plaintiff's own assessment of these matters is insufficient to permit him to proceed with his claims. See, e.g., Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996) ("[A]n employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact."); cf. Russell v. AcmeEvans Co., 51 F. 3d 64, 68 (7th Cir. 1995) ("Evidence required to contradict the employer's evidence is rarely within the competence of the plaintiff to give . . . ."). The plaintiff's own perceptions are particularly irrelevant in this case because they not only contradict Mr. Theodoseau's observations, but are also contrary to other evidence the plaintiff submitted. For example, one of the peer evaluations he introduced indicated that the plaintiff did not "understand the numbers he [was] reporting," as the result of which his "spares forecasts [had] been completed with exceedingly less detail over the last year, at a time in which more detail [was] encouraged due to the dynamic environment." Exhibit 38. The same peer indicated that there had been "a number of instances" in which the plaintiff had ignored requests for assistance from the Company representatives he was supposed to be serving. Id.

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1

C.

The Plaintiff Is Estopped From Denying Has Performance Problems. This Court has previously held that the plaintiff is collaterally estopped

from challenging certain findings made by the administrative law judge in the plaintiff's Sarbanes-Oxley case. See, e.g., Order entered March 31, 2005, at 6 ("The Court adopts the ALJ's finding that secretly taping conversations is grounds for discharge at Intel, and that Intel would have discharged Plaintiff as soon as it found out about this conduct. Plaintiff is collaterally estopped from further litigating this issue."). In this respect, the court noted that "the ALJ found by clear and convincing evidence that Intel would have modified Plaintiff's Corrective Action Plan on August 19, 2002 for legitimate business reasons," and the Court specifically adopted that finding "as a matter of law." Id. The court further noted that this finding

encompassed the following three legitimate business reasons: (1) "First, beginning in January 2002, Plaintiff had surreptitiously taped conversations with other Intel employees in violation of company policy." "Second, when Intel began its Open Door investigation in January 2002 into Plaintiff's allegations that Callaghan was harassing him and treating him unfairly, Plaintiff improperly attempted to coerce his subordinates into giving only positive reviews of him."1 "Third, Plaintiff had consistent difficulty meeting

(2)

(3)

Mr. Theodoseau's interview is also instructive on this point. Among other things, Theodoseau told Ms. Jacob that the plaintiff "pressured" him to "say all these positive things" on the plaintiff's 360° feedback, and also to "say that [the plaintiff] has been discriminated against to [the] EEOC." Exhibit 46, at p. 5. Mr. Theodoseau also reported that he was concerned about his job because the plaintiff "indirectly said, if you are not on my side, then you will not get what we agreed to in [your annual performance review]," and in doing so made it clear that the plaintiff could "put stuff down in [the evaluation] against [Mr. Theodoseau]." Id.

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performance expectations at Intel." The Administrative Review Board of the United States Department of Labor (the "Board") has since affirmed the administrative law judge's decision on

4 which the Court based its collateral estoppel ruling. With respect to the administrative 5 law judge's finding that the plaintiff "had consistent difficulty meeting performance 6 expectations at Intel," the Board agreed that the Company had demonstrated by clear 7 and convincing evidence that the plaintiff "did not integrate himself into Intel's 8 workforce and that he failed to perform up to expectations," and that "[t]hese were 9 sufficient, non-discriminatory reasons to seek his termination." Exhibit 298, at 8. 10 The Board further noted that the plaintiff's performance deficiencies 11 included (1) "missed meetings," (2) "absences from work," (3) "failure to perform 12 duties expected of a group leader," (4) "failure to understand Intel's business 13 operations," (5) "not meeting job expectations for his grade," (6) "failure to comprehend 14 Intel's accounting system," and (7) having his "work shifted to other group leaders." 15 These findings should be accorded no less collateral estoppel effect than the 16 administrative law judge's comparable findings previously adopted by this Court as a 17 matter of law. 18 Indeed, the Board's findings are particularly compelling here because the 19 Company is not required to establish the legitimate reasons for its actions by clear and 20 convincing evidence in this case. See White v. Washington Public Power Supply Sys., 21 22 Title VII case has "the burden of proving it did not discriminate . . . with `clear, cogent 23 and convincing' evidence"). In fact, the burden of proof in this case "remains with the 24 25 The plaintiff nevertheless has argued that the administrative law judge's 26 plaintiff at all times." Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003). 692 F.2d 1286, 1289 (9th Cir. 1982) (rejecting the proposition that the employer in a

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and the Board's findings should not be given collateral estoppel effect because they have been appealed. This argument, implicitly but necessarily and properly rejected by this Court at the time of its March 31, 2005 ruling, is an incorrect statement of the governing law. See Robi v. Five Platters, Inc., 838 F.2d 318, 327 (9th Cir. 1988) ("[A]ppeals in no way affect the `firmness' of [decisions] for purposes of issue preclusion."); Tripati v. Henman, 857 F.2d 1366, 1367 (9th Cir. 1988) (discussing the "established rule in the federal courts" that a decision "retains all of its res judicata consequences pending decision of the appeal"); Home Diagnostics, Inc. v. Lifescan, Inc., 120 F. Supp. 2d 864, 867 (N.D. Cal. 2000) ("A final judgment retains its preclusive effect despite pendency of an appeal.").
D.

Mr. Callaghan's Alleged Remarks Are Insufficient to Permit the Plaintiff to Proceed. The only remaining evidence for the Court to consider involves the

plaintiff's assertion that Mr. Callaghan made certain inappropriate remarks in the workplace. These included (1) questions Mr. Callaghan allegedly asked the plaintiff shortly after the September 11 terrorist attacks regarding why the plaintiff's "people" wanted to kill Americans, and why fundamentalist Islamic groups wanted to "destroy western civilization," (2) a question allegedly posed by Mr. Callaghan during roughly the same time frame regarding whether the plaintiff would consider returning "home" permanently, and (3) an email Mr. Callaghan circulated to staff members on October 12, 2001 inviting them to "grab a Donut," and cautioning that "chocolate donuts are in short supply as we try and match the Taliban for [best-in-class]." Exhibit 8. Particularly in light of Mr. Callaghan's undisputed willingness to accommodate the plaintiff's work schedule to enable him to escort his children home from school immediately after the September 11 attacks, these ambiguous and isolated comments are insufficient to establish the discriminatory intent necessary to permit this

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case to proceed further. Not only has the plaintiff presented nothing to connect the comments to his receipt of a corrective action plan several months later, but such a connection is refuted by Mr. Theodoseau's statement to Ms. Jacob that it was in fact the plaintiff, and not Mr. Callaghan, who was "hung up on the 9/11 thing."2 Under the circumstances, Mr. Callaghan's isolated inquiries and remarks, even if made, are insufficient as a matter of law to support a finding of liability under Title VII. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996) (observing that comments "not tied directly" to an adverse employment action are "weak evidence and not enough to create an inference of . . . discrimination"); Nesbitt v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (holding that an allegedly ageist remark "uttered in an ambivalent manner and . . . not tied directly to [the plaintiff's] termination" was "at best weak circumstantial evidence of discriminatory animus"); Merrick v. Farmers Insurance Group, 892 F.2d 1434, 1438 (9th Cir. 1990) ("`[S]tray' remarks are insufficient to establish discrimination."). Conclusion For the foregoing reasons, the Company respectfully requests that it be awarded judgment in its favor as a matter of law on the plaintiff's remaining claims. RESPECTFULLY SUBMITTED this 7th day of June, 2006. RYLEY CARLOCK & APPLEWHITE s/ Michael D. Moberly Michael D. Moberly Andrea G. Lisenbee One N. Central Ave., Ste. 1200 Phoenix, AZ 85004-4417 Attorneys for Defendant/Counterclaimant

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Mr. Theodoseau indicated, for example, that shortly after the September 11 terrorist attacks, "Ammar brought [his] team into [a] room" and "tr[ied] to convince [them] that [the] U.S. bombed itself." Exhibit 46, at p. 4.

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CERTIFICATE OF SERVICE I hereby certify that on June 7, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I hereby certify that on June 7, 2006, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Ammar Halloum P.O. Box 26662 Tempe, AZ 85285 Plaintiff/Counterdefendant Sawsan Hamad 260 W. Buena Vista Dr. Tempe, Arizona 85284 Counterdefendant s/ Michael D. Moberly Michael D. Moberly

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