Naimark v. Bae Sys. Info. & Elec. Sys. Integration

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LEONID NAIMARK, Plaintiff, v. BAE SYSTEMS INFORMATION AND ELECTRONIC SYSTEMS INTEGRATION INC., Defendant.

No. 20-cv-10138-DJC

United States District Court, D. Massachusetts

December 23, 2021

MEMORANDUM AND ORDER

Denise J. Casper United States District Judge

I. Introduction

Plaintiff Leonid Naimark (“Naimark”) has sued his former employer, BAE Systems Information and Electronic Systems Integration Inc. (“BAE”) alleging age and disability discrimination, and retaliation in violation of Mass. Gen. L. c. 151B, § 4 (Counts I-III, V), and wrongful termination in violation of public policy (Count IV). D. 1-1. BAE has moved for summary judgment. D. 50. For the reasons stated below, the Court ALLOWS the motion.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000).

The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but must come forward with specific admissible facts showing that there is a genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

III. Factual Background

The following facts are undisputed unless otherwise noted and are drawn from the parties' statement of material facts, D. 52, and response to same, D. 62.^[1]

A. Naimark's Employment at BAE

Naimark worked for BAE, a defense, aerospace, and security contractor, as an engineer in its advanced technology R&D group from April 1, 2013 until June 13, 2018. D. 52 ¶¶ 1-3, 189. Beginning in 2016, Naimark worked on a project called VANA (“Vision Aided Navigation Architecture”) funded by the Air Force Research Laboratory (“AFRL”). Id. ¶¶ 6-9. Michael Richman (“Richman”) was VANA's Program Manager. Id. Naimark's direct supervisor at the beginning of 2017 was Stephen DelMarco (“DelMarco”). Id. ¶ 5. Beginning in August 2017, Simone Bortolami (“Bortolami”) became Naimark's direct supervisor. Id. ¶ 28.

B. 2017 Performance Issues

In January 2017, Richman provided feedback to DelMarco for Naimark's midyear review, which observed that Naimark had strong technical capabilities, but critiqued, among other things, Naimark's use of time. Id. ¶ 13-14; D. 53-1 at 3. Specifically, Richman pointed out that Naimark was not spending sufficient time on billable work. Id. As Principal Investigator of VANA, Naimark had to ensure each VANA deliverable was of satisfactory quality and functionality. D. 52 ¶ 19. Naimark, however, was late to complete certain work that resulted in missing functionality, and certain software sent to AFRL had errors that prevented it from running correctly, requiring the VANA team to re-do work and send corrected software to AFRL. Id. ¶¶ 20-22.

In June 2017, Naimark gave a presentation on VANA at the Joint Navigation Conference. Id. ¶ 23. James Metzler (“Metzler”), the AFRL lead, was in attendance, as was Bortolami. Id. ¶¶ 8, 23. Bortolami observed that Naimark did not appear to have adequately prepared for the presentation. D. 59 ¶ 4. Metzler wrote to Richman that Naimark “had some issues managing time and getting through the presentation [and] [i]t didn't appear he had the flow of the presentation worked out beforehand to move through it efficiently.” D. 53-3.

When Bortolami became Naimark's direct supervisor in August 2017, he received pushback from Naimark in several respects, like meeting deadlines for tasks Bortolami assigned him. D. 52 ¶¶ 33, 35-36; D. 59-1 at 10. In November 2017, Bortolami wrote Richman with detailed notes on issues that had arisen with Naimark. D. 52 ¶ 37. Bortolami mentioned, among other things, the June 2017 conference and that Naimark regularly arrived at work between 10:30 and 11:30 a.m., leaving by 4:30 p.m., and told his supervisors he was otherwise working remotely, but his productivity could not be tracked as he failed to report his hours promptly. D. 59-4. Richman replied that Bortolami's comments were consistent with his own impressions. D. 52 ¶ 38. Bortolami forwarded the report to David Brecher (“Brecher”) in Human Resources. Id. ¶¶ 34, 38; D. 59-4.

C. 2017 Performance Review and Performance Improvement Plan

Employees at BAE receive an annual, written performance review (“PDR”) in which they receive grades from one (lowest) to five (highest). Id. ¶ 59. Naimark received a two in 2013, and threes in 2014, 2015 and 2016. Id. ¶ 60. Bortolami attempted to schedule Naimark's 2017 review for the week of January 15, 2018. Id. ¶¶ 66-67. Naimark refused to do a one-on-one review with Bortolami and instead wrote to Brecher, requesting that HR monitor his 2017 PDR. Id. ¶ 68. Brecher met with Naimark to discuss his concerns. Id. ¶¶ 69-70. On January 24, 2018, Bortolami sent a draft of Naimark's PDR to Richman, which Richman subsequently edited. Id. ¶¶ 72, 76. The review noted that Naimark spent 50% of his time on billable work (but was expected to spend 90%), as well as his unsatisfactory VANA deliverables, the presentations that Naimark did not adequately prepare for, his last-minute completion of tasks that required fixes and edits from his colleagues, and his issues arriving at work on time and for full days. Id. ¶¶ 62-64, 76. That same day, Richman and Bortolami met with Brecher to discuss developing a performance improvement plan (“PIP”) for Naimark. Id. ¶¶ 74-75. Bortolami posted Naimark's review on February 7, 2018. Id. ¶ 84.

Later that day, Naimark emailed BAE's ethics officer, Michael Claffey (“Claffey”) stating that he had been a subject of “systemic retaliation” from his manager. Id. ¶ 85. Claffey and Brecher investigated the allegation in Naimark's email and concluded that no violation had occurred. Id. ¶ 88, 91-92.^[2]

On March 26, 2018, Richman, Bortolami and Brecher met with Naimark to discuss his 2017 review and to present the PIP. Id. ¶ 93. The PIP established four performance objectives for Naimark: 1) 70% staffing on billable projects, 2) improved work quality, with oversight and guidance, 3) attendance at the office during regular business hours (8:30 a.m.-5:30 p.m.), and 4) improved teamwork and communication. Id. ¶ 94. The PIP required Naimark to be staffed at the 70% billable level within 60 days. D. 53-12 at 7. Naimark objected to Bortolami's supervision of the PIP and Richman agreed to supervise Naimark during the PIP period. D. 52 ¶ 95.

D. Request for Accommodation

The day after Naimark's PIP meeting, Naimark emailed Richman to request an “effective working schedule” that would allow him to arrive at work at 10:00 a.m., citing to traffic concerns and health issues. Id. ¶¶ 96-97. As to traffic, Naimark noted that leaving later would avoid rush hour and save him time. Id. As to his health, Naimark mentioned that he wakes up early, either due to his “advanced age” or to “the stressful situation in the office.” Id. Brecher replied to Naimark's request with forms and documentation for BAE's accommodation process, which included medical documentation for Naimark to complete. Id. ¶ 98. Richman and Becher informed Naimark that his request to arrive at 10:00 a.m. was under formal consideration, but it would be informally allowed while his request was under consideration, and Naimark's PIP was adjusted accordingly. Id. ¶ 100.

On April 9, 2018, Naimark emailed two letters from medical providers in support of his request. Id. ¶ 110. The first letter, from Naimark's primary care provider, stated that “[d]ue to a medical condition it would be beneficial for [Naimark] to have flexible work hours such as a late start time and/or remote work from home whenever possible, ” but did not specify any medical condition that Naimark had. Id. The second letter, from Naimark's therapist, stated that Naimark was experiencing anxiety, insomnia and a depressed mood, and recommended “more flexible working hours.” Id. The next day, Lynn Ross (“Ross”) of HR informed Naimark that these letters did not adequately specify an actual medical condition and treatment plan, and that Naimark still needed to submit a Confidential Request for Accommodation form. Id. ¶ 115. Naimark submitted the form on April 12, 2018, and supplemental materials supporting same. Id. ¶ 116. Naimark asserted that his medical condition impaired the following major life activities: “sleeping, driving in traffic, interacting in hostile environment, ” and that driving in traffic made him anxious and the hostile work environment he perceived was “counterproductive to concentration.” Id.

On April 18, 2018, Ross emailed Naimark to explain that his physician statement needed to address specific life activities that were impaired by his medical condition and to propose a specific accommodation to address that condition. Id. ¶ 126. Naimark replied that his medical condition was the result of mistreatment by his management and that he hoped that when the mistreatment ended, his conditions would be resolved. Id. Naimark requested that his 10:00 a.m. start request be approved immediately. Id. On April 27, 2018, Ross informed Naimark that his ...