Boex v. Ofs Fitel, LLC

Page 1352

339 F.Supp.2d 1352

Bella Zaslavaskaya BOEX, Plaintiff, v. OFS FITEL, LLC, a Delaware Limited Liability Company, Defendant.

No. CIV.A.1:03-CV-1595-C.

United States District Court, N.D. Georgia, Atlanta Division.

September 7, 2004.

COPYRIGHT MATERIAL OMITTED

Stephen M. Katz, Betts & Katz, Atlanta, GA, for Plaintiff.

Robert Steven Ensor, Makila A. Sands, Alston & Bird, Atlanta, GA, for Defendant.

ORDER

COOPER, District Judge.

Pending before the Court is Defendant OFS Fitel, LLC's Motion for Summary Judgment [Doc. No. 15-1]. For the reasons set forth below, the Defendant's Motion is granted.

Plaintiff Bella Zaslavaskaya Boex ("Plaintiff"), who is of Russian-Jewish ancestry, brings this employment discrimination action against her former employer, OFS Fitel, LLC ("Defendant" or "OFS"). Plaintiff alleges Defendant terminated her because of her race/ancestry in violation of 42 U.S.C. § 1981. Plaintiff likewise alleges claims for intentional infliction of emotional distress and negligent retention.

I. STATEMENT OF FACTS

A. The Initial Years of Boex's Employment With Lucent and OFS

On August 2, 1998, Plaintiff began her employment with Lucent Technologies ("Lucent") as an engineer in the Copper Cable Research and Development ("R & D") Department. (DSMF¹ ¶ 6.) OFS, the defendant in this action, was formed in November of 2001, as a result of the sale of Lucent's Optical Fiber Solutions business to Furukawa Electric. (Id. at ¶ 1.) Defendant is a global telecommunications company that develops, manufactures, distributes, and sells fiber optic cable and components. (Id. at ¶ 2.) Defendant operates fiber optic plants in Germany, Brazil, Denmark, and several locations in the United States, including Norcross, Georgia. (Id. at ¶ 3.)

Prior to Defendant's acquisition of Lucent, Plaintiff transferred into another engineering position in the Fiber R & D Department. (Id. at ¶ 7.) Among Plaintiff's job responsibilities in the R & D Department were prototyping, taking measurements, analyzing data, and modifying designs. (Id. at ¶ 8.) In addition, Plaintiff interacted with customers to discuss technical aspects of Defendant's products. (Id.) Plaintiff had little involvement in selling Defendant's products and working with Defendant's sales force, and her contact with Defendant's personnel at production facilities was generally limited to communications about technical aspects of Defendant's products. (Id.)

B. Boex's Transfer Into Product Line Management

Due to declining revenues since 2001, Defendant has implemented several measures to reduce costs, including facility closures and consolidations and significant employee layoffs. (Id. at ¶ 9.) In September of 2002, Defendant began preparing for a reduction in force. (Id. at ¶ 11.) One of the departments impacted was the department in which Plaintiff was working at the time. (Id.) Plaintiff and about fifty other employees in the R & D Department were scheduled to be laid off in October of 2002. (Id. at ¶ 12.) Prior to announcing the final layoff decisions, however, Defendant permitted the managers who supervised the employees scheduled to be laid off to explore whether positions were available elsewhere within OFS into which the employees might be transferred. (Id. at ¶ 13.)

David Kalish ("Kalish"), Chief Technology Officer and Vice President of R & D, recommended Plaintiff to Michael Pearsall ("Pearsall"), Vice President of Global Sales and Marketing and Product Management, for consideration for transfer into the Product Line Management ("PLM") Department as a Product Manager. (Id. at ¶ 14.) Peter Roberts, Defendant's Director of Product Management, interviewed Plaintiff for the Product Manager position. (Id. at ¶ 15.) During the interview, Roberts described the duties and responsibilities for that position. (Id.) Roberts described the position to include responsibility for the management of the life cycle of Defendant's products, which involved defining products, promoting products, positioning and distinguishing Defendant's products from those of competitors, and pricing products in the marketplace. (Id. at ¶ 16.) Product Managers were also required to interact and communicate effectively with Defendant's customers and the sales, marketing, and operations personnel. (Id.)

Roberts hired Plaintiff as a Product Manager in the PLM Department, (id. at ¶ 17), although Plaintiff contends he did so reluctantly (PSMF² ¶ 15). According to Plaintiff, Roberts learned that in order to hire her as Product Manager, Roberts had to release another OFS employee, Brian McDermontt ("McDermontt"). (Id. at ¶ 11.) Roberts had known McDermontt at least ten (10) years and was not in favor of releasing him because Roberts worked well with McDermontt and was satisfied with McDermontt as an employee. (Id. at ¶¶ 11-12.) Notwithstanding Roberts' reluctance to release McDermontt, McDermontt's position was eliminated, and Plaintiff assumed McDermontt's job functions. (Id. at ¶¶ 14-15.)

Plaintiff's transfer to the PLM Department prevented Plaintiff from being laid off in October of 2002. (DSMF ¶ 18.) Plaintiff worked as a Product Manager for approximately four months from October of 2002 until the termination of her employment on February 12, 2003. (Id. at ¶ 19.) During the time Plaintiff worked as a Product Manager, she reported to Roberts and Roberts reported to Pearsall, who traveled frequently internationally and domestically. (Id. at ¶ 20; PSMF ¶ 4.) Plaintiff was assigned to manage Defendant's "ocean" and "nonzero dispersion fiber" ("NZDF") products. (DSMF at ¶ 21.)

C. Boex's Performance as a Product Manager

Defendant contends Plaintiff's performance as a Product Manager was unsatisfactory. (Id. at ¶ 22.) Specifically, Defendant claims both Pearsall and Roberts believed Plaintiff failed to do the following: (1) effectively manage Defendant's relationship with Tyco, which was Defendant's only customer for the ocean product; (2) effectively communicate with members of Defendant's sales team; (3) secure the confidence of Defendant's management staff; (4) satisfactorily prepare and present a product plan for the NZDF product at the global sales meeting that occurred in January of 2003; and (5) ensure the timely delivery of a product to a new customer in February of 2003. (Id.) With the exception of post-termination documentation reflecting the reasons for Plaintiff's termination, Defendant has produced no documentation concerning any of the above performance deficiencies.

Plaintiff refutes she performed unsatisfactorily as a Product Manager. Plaintiff states Pearsall never criticized her work on the NZDF plan. (PSMF at ¶ 29(i).) Rather, she states she had a discussion with Pearsall concerning a product Roberts wanted Plaintiff to include in the plan, although the product did not exist at that time. (Id.) As to Plaintiff's management of the relationship with Tyco, Plaintiff states Pearsall only heard from Kalish that Plaintiff failed to return a telephone call from the contact at Tyco, and Plaintiff contends this evidence is inadmissible. (Id. at ¶ 29(iii).) Plaintiff also states Tyco highly valued her. (Id.) Moreover, regarding her product presentation in 2003, Plaintiff states there is no documentation that the presentation was deficient. (Id. at ¶ 29(ii).) Finally, with respect to her alleged failure to deliver a product to a new customer in a timely manner, Plaintiff argues that Roberts ordered the wrong fiber for the customer. (Id. at ¶ 30.)

D. Alleged Discriminatory Remarks by Boex's Supervisor

Plaintiff claims Roberts repeatedly made stereotypic, racist comments in her presence about her Russian and Jewish ancestry, as well as other offensive comments about Russians and Jews in particular. (Id. at ¶ 16.) Roberts admits stating to Plaintiff, "You don't look Russian, you look Romanian," or something to that effect. (Id.; Roberts Dep. at 97-98.) According to Plaintiff, Roberts made this statement completely out of the blue at some point in November of 2002. (PSMF ¶ 18.) Plaintiff also maintains that in a meeting concerning a customer, Roberts stated in her presence that Defendant could not get rid of the customer because of the "Kalish-Shapiro relationship." (Id. at ¶ 17.) Plaintiff likewise recalls Roberts might have made a statement that Plaintiff would connect with a customer because Plaintiff was Jewish. (Id.) Roberts also allegedly stated, "Those Jewish men think they run the business but, in fact, it's us Germans running the business." (Id.) Plaintiff reported this statement to Kalish but did not ask him to take any action against Roberts or to do anything about the comment. (DSMF ¶ 39.) Plaintiff remembers Roberts asking her on one occasion why all Russian people have bad teeth and then commenting that it seemed like she had good teeth. (PSMF ¶ 19.) Plaintiff further contends Roberts made several comments to the effect she was doing things the way they were done in Russia, and Roberts allegedly made these comments in the context of Plaintiff's job performance. (PSMF ¶¶ 20-21; Pl. Dep. at 209.) Finally, Plaintiff contends Roberts repeatedly reminded her that he was German. (PSMF ¶ 22.)

E. Boex's Termination and Complaint to the EEOC

On February 12, 2003, Roberts informed Plaintiff that her at-will employment as a Product Manager was being terminated, (DSMF ¶¶ 25, 38), but the parties dispute whether Roberts or Pearsall made the termination decision.³ During the meeting, Roberts and Rick Durham ("Durham"), Defendant's Performance Management Manager, presented Plaintiff with job descriptions for three open positions with OFS and asked whether Plaintiff wished to be considered for any of the jobs. (Id. at ¶ 26.) After reviewing the job descriptions, Plaintiff informed Roberts and Durham that she did not wish to be considered for any of the three positions. (Id.) According to Plaintiff, each of the positions offered was a clerical position, which Plaintiff thought was...