No. 62137-8-I.The Court of Appeals of Washington, Division One.
May 4, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-2-17940-2, John P. Erlick, J., entered July 25, 2008.
Affirmed by unpublished opinion per Agid, J., concurred in by Dwyer, A.C.J., and Becker, J.
UNPUBLISHED OPINION
AGID, J.
To establish a prima facie case of employment discrimination, an employee alleging termination due to age or race must, among other things, produce evidence that he or she was performing satisfactorily. Because Sabel Bbela failed to produce such evidence below, and, alternatively, because he produced no evidence that his employer’s reasons for terminating him were a pretext for discrimination, we affirm the trial court’s order dismissing his employment discrimination claim on summary judgment.
FACTS
Between April 2001 and July 2004, Bbela worked for Microsoft as a computer programmer. Microsoft originally assigned him to a project involving the reengineering of a computer program known as “Calypso.” Although Bbela’s work on Calypso was satisfactory, his supervisor, Cory Purkis, reported problems with Bbela’s ability to take direction and criticism.
Purkis alleged that he “had many problems working with Mr. Bbela from the very beginning of our relationship.” Bbela resisted supervision and his behavior at times verged on “outright insubordination.” Purkis brought these issues to Bbela’s attention in his evaluations.
In late 2003, as the Calpyso project was winding down, Microsoft reassigned Bbela to a newly formed group known as the “U.S. FOIT Ops” team. According to his new supervisor, Scott Roberts, Bbela was not happy with his reassignment from the outset and problems soon arose.
By early 2004, Roberts and his lead programmer, Phil Black, were encountering problems similar to those reported by Bbela’s prior supervisor. Bbela responded poorly to criticism, was argumentative and confrontational, and resisted direction. While working on a project known as the “MARS” status page, Bbela resisted Black’s repeated directions to use a specific tool for the project. Black alleged that “Bbela almost uniformly rejected my advice and direction. [He] seemed to form an opinion about how something should be done, and he would reject any contrary advice, even if it was from a senior level developer.” When Roberts set a deadline for Bbela’s work on the project, he missed the deadline and ultimately delivered “poor quality” work that required unnecessary follow up and work and clarification.
In May 2004, Roberts told Bbela his job was in jeopardy and set specific expectations and deadlines for Bbela’s current project, “BAM.” On June 14, 2004, Bbela presented his BAM solution to the customer team. The team members roundly criticized the solution as failing to meet the requirements they had set. The solution “often reported unreliable information, the security on the tool had to be manually configured and maintained, . . . the proposed database was not scalable and could get corrupted[,] and the proposed database reset every month and thus could not hold sufficient data.” According to Roberts, “Bbela refused to accept that his proposed solution would not work” and “was either unwilling or unable to incorporate the customer’s requirements.”
On June 22, 2004, Roberts informed Bbela by e-mail that his job was still in jeopardy and that he needed to make immediate and significant improvements in his performance. The e-mail set out specific expectations regarding Bbela’s behavior and work product and a new deadline.
In July 2004, Bbela presented his final work product for BAM. The lead programmer on the project, Ilya Buzytsky, concluded that Bbela’s solution was inadequate and “could not evolve into production quality code.” Buzytsky explained that Bbela had “attempted to adapt an off-the-shelf application . . . to perform a job it had never been designed to do.”
While working with Bbela, Buzytsky encountered the same resistance to direction that prior supervisors had experienced. Bbela “had his own pre-conceived idea of how he should carry out his tasks, and he refused to change course in response to . . . coaching and direction.” Buzytsky “spent a number of useless hours in meetings and over e-mail due to Mr. Bbela’s inability or refusal to understand and respond to . . . coaching and direction.” He “had never before worked with a developer who was so poor at taking direction.”
On July 15, 2004, Roberts terminated Bbela’s employment. According to Roberts, Bbela had not met the performance goals set for him, did not respectfully communicate with others, did not accept coaching, advice, or direction, and refused to accept responsibility for his projects.
In May 2007, Bbela filed this action for employment discrimination, intentional infliction of emotional distress, and intentional interference with a business relationship. The complaint alleged that Bbela is “a man of African descent who is over 40 years of age,” and that he was denied training, pay increases, and work opportunities that “other non-African, younger employees” received.
In November 2007, the court granted partial summary judgment, dismissing Bbela’s claims for emotional distress and interference with a business relationship.
On January 25, 2008, the court dismissed Bbela’s remaining claim for employment discrimination. Bbela moved for reconsideration, arguing in part that newly discovered evidence showed that Microsoft denied him training in an essential programming language called “C#.” Bbela claimed Microsoft’s denial of that training supported an inference that its stated reasons for termination were pretextual. The court granted the motion and authorized supplemental briefing on “why the failure to provide C# training to plaintiff Bbela was not discriminatory and why the C# training was not necessary for Mr. Bbela’s performance in the FOIT OPS Department.”
In July 2008, the court again dismissed Bbela’s discrimination claim. In its oral decision, the court ruled that Microsoft had carried its burden of demonstrating a nondiscriminatory reason for Bbela’s termination, i.e., his “failure to perform to a satisfactory level.” The court also concluded that Bbela had not carried his burden of producing evidence showing that Microsoft’s reasons for terminating him and for denying him training were pretextual. Bbela appeals.
DECISION
Bbela’s sole contention on appeal is that the trial court erred in dismissing his claim for employment discrimination based on his age and race.[1] We review a summary judgment order de novo, engaging in the same inquiry as the trial court and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party.[2] Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.[3]
When, as in this case, an employee lacks direct evidence of discriminatory animus, courts evaluating summary judgment motions apply the federal McDonnell Douglas
burden-shifting protocol.[4] The plaintiff must first demonstrate a prima facie case of discrimination, which creates a presumption that the employer discriminated.[5] In response, the employer must produce admissible evidence of a legitimate, nondiscriminatory reason for the adverse employment action.[6]
If the employer meets this burden, the presumption is removed and the burden shifts back to the plaintiff, who must then present evidence sufficient to disbelieve the employer’s explanation.[7] A plaintiff carries the latter burden by showing that the employer’s reasons have no basis in fact, are not what actually motivated the employer, or are insufficient to motivate an adverse employment decision.[8]
Microsoft contends Bbela failed to carry his initial burden of establishing a prima facie case of discrimination. We agree. To establish a prima facie case, an employee alleging termination due to age or race must, among other things, produce evidence that he or she was performing satisfactorily.[9] The employee must do more than express an opinion or make conclusory statements; there must be specific and material facts to support each element of his or her prima facie case.[10] Bbela did not meet that burden.
Although Bbela correctly points out that his work product on the Calypso project was satisfactory, his work on the projects immediately preceding his termination — i.e., MARS and BAM — was not. Microsoft’s evidence showed that Bbela’s work on MARS was untimely and of “poor quality.” Bbela’s claims to the contrary are not supported by the record. For example, in claiming that his work on the status page was timely, Bbela points to an e-mail indicating that the page would be in “production” a week before requested. While this evidence may demonstrate the timeliness of the MARS team’s final product, it does not rebut evidence that Bebla’s work on the project, i.e., the code, was untimely. Similarly, Bbela claims that certain e-mails show that the code he wrote for the status page was not “poor quality.” But the e-mails are dated 10 day after Bbela initially presented his code. Thus, they do not rebut the evidence that the code Bbela delivered 10 days earlier was unsatisfactory and required additional work.
Bebla’s claims regarding his performance on the BAM project are also not borne out by the record. As noted above, his superiors concluded that his work was not “of production level.” Bbela claims his superiors were predisposed to reject his work because they favored a custom solution. The evidence he cites, however, shows that his superiors’ preference was based on customer feedback and user requirements, not his superiors’ predilections. Furthermore, the negative response to his BAM solution did not come solely from his superiors. Virtually everyone who reviewed the solution, including the customer team and the lead programmer, found it unsatisfactory.
Finally, and most importantly, Bbela points to no evidence showing that he had satisfactory interactions with his supervisors during any portion of his employment. His resistance to supervision was the most persistent and fundamental problem with his performance. The evidence demonstrating that problem was ample and essentially unrebutted.
In short, viewing the evidence in a light most favorable to Bbela, there is no genuine issue of fact as to whether he was performing satisfactorily at the time of his termination. He thus failed to establish a prima facie case.
Even if Bbela had established a prima facie case, we would still sustain the dismissal of his claims. Under the McDonnell Douglas protocol, the burden shifted back to Bbela when Microsoft offered legitimate, nondiscriminatory reasons for terminating his employment. At that point, it was his burden to establish an evidentiary basis to disbelieve Microsoft’s explanation. He did not do so.
Bbela questions his superiors’ motives and speculates that they were setting him up to fail. But he provides no evidentiary basis for these suspicions. He claims that Roberts and Human Resources Representation Taunya Hilfrink attempted to distort his performance evaluations, but the e-mails he cites merely document the company’s ongoing efforts to deal with his shortcomings. Nothing in the e-mails even remotely suggests an attempt to distort his work record.
Bbela also claims that Microsoft’s denial of his request for certain training provides a basis to question its explanation for his termination. Specifically, he alleges that Roberts denied him training in C# programming, that such training was necessary for him to succeed in his job, and that other “non-African” employees received C# training. He claims this evidence supports an inference that his superiors harbored discriminatory animus and/or were setting him up to fail. This claim is flawed in several respects.
As the superior court correctly noted, the employees who received the training Bbela sought were not similarly situated. Those employees not only worked for other teams, but their training was requested under different circumstances and approved by different supervisors. There also was no evidence rebutting Roberts’ claim that he denied Bbela’s training request because he “did not believe that Mr. Bbela had the time to take five days out of his schedule to attend this training.” The record, in fact, lends credence to Roberts’ explanation since Bbela had missed a deadline shortly before Roberts denied his training request.
Additionally, the record does not support Bbela’s assertions that he needed C# training to succeed in his job or that Microsoft was aware that he needed it. Microsoft’s evidence established that any one of three programming languages, including C#, could be used to create the custom solutions Bbela failed to produce and that Bbela did not need proficiency in C# to succeed in his assignments. Bbela fails to demonstrate a genuine issue of fact on these points.[11]
And contrary to Bbela’s assertions, nothing in the record supports an inference that Microsoft knew he lacked proficiency in all three languages. In fact, Bbela’s evaluations suggested that he possessed such proficiency. When addressing his professional goals in his evaluations, Bbela mentioned a desire for additional language training. He generally expressed that desire, however, in terms of wanting to become “more
proficient”[12] at those languages. This implied that he had already attained proficiency but simply wanted to improve upon it.
Bbela also claims he was denied job opportunities inside Microsoft that better suited his skills and that were available to other “non-African” employees. He contends these denials also support an inference of discriminatory animus. But once again, the record does not support his claim.
Bbela points to an April 2004 e-mail in which he requested permission to interview for a higher level programming job inside Microsoft. In his response, Roberts told Bbela he needed to focus “on bringing your performance up to a level that is meeting expectations for your current level and title. I cannot grant your permission to interview for other positions until that time.” Nothing in the record suggests that Roberts’ reasons for denying Bbela’s request were pretextual. To the contrary, given Bbela’s well-documented struggles in a lower level programming position, his admission below that he lacked proficiency in three essential programming languages, and his undisputed and persistent recalcitrance, the record strongly supports Roberts’ explanation. Furthermore, Bbela fails to show that any of the employees allowed to transfer to other Microsoft positions were similarly situated to him.
Finally, even if it could be said that Bbela made out a prima facie case of satisfactory performance regarding his work product and provided an evidentiary basis to disbelieve that basis for his termination, summary judgment was still proper. It is well settled that even when both parties meet their respective burdens, summary judgment may still be proper if no rational trier of fact could conclude that discrimination was a substantial factor in the employer’s action.[13] “The sufficiency of the employee’s evidence, even with a prima facie case and proof of pretext, must be gauged on numerous factors, including the strength of the employee’s prima facie case, the probative value of the proof discrediting the employer’s explanations, and any other admissible evidence supporting the employer’s case.”[14] Applying that rule here,
we are convinced that even if Bbela could establish that his work product was adequate and that Microsoft’s explanation for his termination was not credible in that respect, no rational trier of fact could conclude that Microsoft’s decision to terminate him was discriminatory given the dearth of evidence suggesting pretext and the abundant and essentially uncontroverted evidence of his inability to follow the directions of his superiors.
Affirmed.
(2000)).