BIVICHEV v. TIMCO AVIATION SERVICES, INC.
Filing
48
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 6/14/2013, that the motion for summary judgment by Defendant Triad International Maintenance Corporation (Doc. 24 ) is GRANTED, and this action is DISMISSED. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DENIS BIBICHEV,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
TRIAD INTERNATIONAL
MAINTENANCE CORPORATION,
Defendant.
1:12cv129
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This employment action is before the court on Defendant’s 1
motion
for
summary
judgment.
(Doc.
24.)
Plaintiff
has
responded (Doc. 36), and Defendant has replied (Doc. 38).
For
the reasons set forth below, the motion will be granted and the
case dismissed.
I.
BACKGROUND
The
facts,
construed
in
the
light
most
favorable
to
Plaintiff as the non-moving party, show the following:
Plaintiff Denis Bibichev (“Bibichev”) was born to ethnic
Russian parents in what is now Uzbekistan in the former Soviet
Union.
(an
1
He considers himself an ethnic Russian and ethnic Slav
historic
term
including
ethnic
Russians).
His
parents
Defendant TIMCO Aviation Services, Inc., was dismissed with
prejudice by stipulation after the filing of the present motion.
(Doc. 30.)
brought him to the United States in 1995 when he was 14 years
old.
Although his first language was Russian, he attended high
school, learned English and, in 2001, became a United States
citizen.
(Doc. 25–1 (“Plaintiff Dep.”) at 16-19. 2)
Defendant
Triad
International
Maintenance
Corporation
(“TIMCO”) 3 first hired Bibichev as an aircraft mechanic in 2005.
(Plaintiff Dep. at 20-27.)
He worked for TIMCO until 2006, when
he left to work for another company.
(Id. at 31.)
In March
2008, Bibichev applied for and was offered positions by both
TIMCO and PACE Airlines.
He took the position with PACE but was
laid off in December 2008 when it faced financial difficulties.
In early 2010, Bibichev obtained employment with Storm Aviation
to work for it under the supervision of TIMCO team leaders and
management.
Aviation
(Id. at 35-39, 43-46.)
informed
Plaintiff
that
services, and he was laid off.
In June or July 2010, Storm
TIMCO
no
longer
needed
his
(Id. at 49-52.)
Bibichev claims that during his work for Storm Aviation he
overheard TIMCO employee and fellow team member Nathaniel (Nate)
Flippin
Russian,”
(“Flippin”)
“lazy
say
the
Russian,”
following
and
“crazy
to
others:
Russian
“crazy
conspiracy
2
Portions of Plaintiff’s deposition are found in Doc. 25-1, Doc. 361, and Doc. 36-2. While some pages appear in one document but not the
other, the court will reference “Plaintiff Dep.” generally.
3
The parties stipulate that former Defendant TIMCO Aviation Services,
Inc., never employed Plaintiff but that TIMCO was its wholly-owned
subsidiary from January 1, 2010, through December 31, 2011.
(Doc.
29.)
2
theorist.”
(Id.
at
58-62.)
“Denis, that crazy Russian.”
Flippin
(Id. at 62-63.)
only ethnic Russian on the team.
time,
Bibichev
never
also
complained
allegedly
Plaintiff was the
(Id. at 62.)
about
said,
Flippin’s
During this
comments
or
witnessed any hostile behavior or derogatory comments by Flippin
toward him personally.
(Id. at 57-61, 81.)
On September 27, 2010, TIMCO hired Bibichev as an employee.
It provided Bibichev a copy of its employee handbook and newhire probationary policy.
After
initial
(Id. at 92-93, 97, 100-101, 233-35.)
assignments,
shortly
after
December
25,
2010,
TIMCO assigned Bibichev to a newly-formed team lead by Flippin,
where Bibichev was the only ethnic Russian.
(Id. at 120-23,
206.)
On January 12, 2011, Flippin informed Bibichev that his
work performance was below expectations and provided guidance on
what was needed to improve.
Dep. at 39-41.)
(Id. at 140-41; Doc. 25-4, Flippin
Bibichev resolved to “work harder,” although he
denied that improvement was needed.
At deposition, he could not
identify any action he took to improve performance other than to
“work harder.”
Flippin
(Plaintiff Dep. at 151-57, 248-49.)
says
that
he
continued
to
be
dissatisfied
by
Bibichev’s performance after the January 12, 2011 meeting and
brought his concerns to TIMCO Human Resources Manager Clarissa
Carl (“Carl”), who informed him that he could extend Bibichev’s
3
90-day
new-hire
probationary
2010 expiration).
period
(beyond
the
(Flippin Dep. at 41-43.)
December
27,
On January 18,
2011, Flippin and his manager, Robert Nelson (“Nelson”), met
with Bibichev to discuss their concerns about his allegedly nonimproving
performance
(including
assertions
that
he
was
performing unassigned tasks and was a slow worker) and informed
him that his new-hire probationary period was being extended 60
days.
(Plaintiff Dep. at 159-60.)
performance
needed
improvement.
Plaintiff Dep. Ex. 5.)
Bibichev disagreed that his
(Id.
at
160-64;
Doc.
37-3,
He persisted in his view that he had
done nothing wrong and noted that he had never been written up
or had any problem with a supervisor during any prior time with
TIMCO.
(Plaintiff Dep. at 160-64, 232, 234-35, 247-49.)
The day after the January 18, 2011 meeting, Bibichev met
with Randy Crews (“Crews”), a TIMCO employee formerly assigned
as
his
supervisor,
evaluation. 4
to
review
a
prior
written
performance
The evaluation was dated December 10, 2010, and
therefore covered just over the first two months of Bibichev’s
employment. 5
Bibichev
that
(Doc. 37-4, Plaintiff Dep. Ex. 6.)
the
evaluation
covered
work
from
Crews told
the
day
he
started at TIMCO and was based on information from Scott Sass
4
Bibichev had been assigned to a team led by Crews but was reassigned
after Crews was injured in a motorcycle accident and became unable to
lead the team. (Id. at 112-115.)
5
The delay likely reflects Crews’s absence in late 2010 due to his
motorcycle accident.
4
(who had replaced Crews as supervisor of the team prior to the
December
2010
assignment
to
Flippin’s
team)
and
others.
According to Bibichev, Crews told him he was a good employee and
that others were saying good things about him.
at 167-69.)
(Plaintiff Dep.
The evaluation gave Bibichev a score of 5 on a
scale of 1 to 10 -- the lowest score for “meets requirements”
(with scores of 3 and 4 being “below expectations” and 1 and 2
being
“unacceptable”).
Of
each
of
the
fourteen
specific
criteria considered, Bibichev consistently scored a 5.
Doc. 37-4, Plaintiff Dep. Ex. 6.)
stated
that
“performance
(See
Consequently, the evaluation
results
consistently
meet
job
requirements.”
After the January 18, 2011 meeting, Flippin continued to be
dissatisfied with Bibichev’s performance (Flippin Dep. at 4649), and Bibichev continued to disagree with that assessment
(Plaintiff Dep. at 271-72).
At unspecified times during this
period (January 2011), Bibichev again overheard (but did not
see)
Flippin
“joking
conspiracies[’];
Russian.’”
‘lazy
about
-–
me,
lazy
you
know,
Russian’;
‘Russian,
you
know,
crazy
‘crazy
Flippin did not make these comments to Bibichev.
(Id. at 195-96, 204-09.)
On February 9, 2011, while working on an aircraft, Bibichev
used his flashlight to check the anti-ice ducts located behind
access panels in the wings.
At the end of the shift, he could
5
not locate the flashlight but clocked out and headed out even
though
company
policy
required
that
the
loss
of
reported because it could pose a safety concern.
31.)
a
tool
be
(Id. at 130-
Bibichev says he reported the missing flashlight “right
away” to Flippin 6 (id. at 130), although admittedly after he
(Bibichev) had left his shift.
(according
to
Bibichev,
Bibichev later returned to work
shortly
thereafter
(id.
at
131);
according to TIMCO, roughly an hour later (Flippin Dep. at 48))
and told Flippin, “Listen, I want to double-check, making sure I
did
not
because
131.)
forget
this
is
that
a
flashlight
dangerous
at
one
situation.”
of
the
compartments,
(Plaintiff
Bibichev offered to look on his own time.
Dep.
(Id.)
at
The
aircraft had to be partially disassembled, but the flashlight
was never found.
(Id.; Flippin Dep. at 48-49.)
The next day, TIMCO terminated Bibichev.
at 132.)
(Plaintiff Dep.
TIMCO’s February 10, 2011 “Record of Written Warning,
Reprimand, or Discharge” stated the reason as “Unsatisfactory
Probation.”
In a separate section, it provided: “Termination
due too [sic] unsatisfactory probation due too [sic] poor work
performance.
12-27-2010
Individual[’]s probation was extended 60 days on
thru
02-25-201[1].
After
6
further
evaluation
the
In a February 15, 2011 email to Carl, Bibichev makes no mention of
an immediate alert to Flippin.
Instead, Bibichev stated, “I do not
see how you can claim that somebody is unsafe when they come back to
work to tell their Supervisor that their flashlight is missing and
that i [sic] wanted to double check on my own time . . . .” (Doc. 377 at 1.)
6
individual
continued
to
placed on 2nd probation.”
perform
unsatisfactory
[sic]
after
(Doc. 37-5, Plaintiff Dep. Ex. 8.)
Bibichev was provided an opportunity to comment, which he
did.
He denied the reasons for his termination, which he called
“accusations” that were “completely false.”
(Id.)
He said he
was not slow but had decided to seek help when Flippin “refused”
to help, denied that he had endangered any aircraft by placing a
boom
close
to
it,
and
said
that
he
had
reported
the
lost
flashlight after he had clocked out but returned on his own time
and looked for it by disassembling panels on an aircraft for
about
an
hour
and
one-half.
(Id.)
He
concluded
that
he
believed his treatment was “because of my ethnic nationality,”
noting, “I am Russian and I know people do not like [me] because
of
that.”
(Id.)
He
claimed
that
TIMCO’s
reasons
were
“illegitimate” and part of an effort “to get rid of me based on
personal hate.”
(Id.)
Bibichev reiterated this sentiment in an
e-mail to Human Resources Manager Carl.
(Doc. 37-7, Plaintiff
Dep. Ex. 9.)
Bibichev
termination.
requested
a
peer
review
hearing
regarding
his
(Doc. 37-6, Plaintiff Dep. Ex. 9 (Feb. 10, 2011
email from Bibichev to Carl).)
On February 17, 2011, he met
with Todd Walker (“Walker”), TIMCO’s Director of Maintenance,
and John R. Huff (“Huff”), TIMCO’s Director of Human Resources.
(Plaintiff Dep. at 278-81, 293-96.)
7
Bibichev told both men that
he believed there had been no deficiencies in his performance.
(Id. at 295-96.)
After
the
meeting,
Bibichev’s concerns.
Huff,
Walker,
and
Nelson
discussed
(Doc. 25-3, Huff Dep. at 68-74.)
Huff and
Walker noted that, although Bibichev had been terminated after a
probationary
verified
period,
it.
(Id.
the
at
human
manager
Huff
69.)
resources
discussed
also
had
not
Crews’
evaluation of Bibichev, noting that it was a part of “catching
up some evaluations” when Crews returned from leave when he was
unaware of subsequent issues relating to Bibichev.
(Id.)
Huff
“felt there may have been confusion,” so they “made the decision
that
the
right
employment.”
thing
to
do
(Id. at 70.)
was
to
reinstate
Mr.
Bibichev’s
The reinstatement would not ignore
the performance issues with Bibichev but, according to Huff, was
intended to move forward with a “performance improvement plan
and a disciplinary action to make sure that he understood that
while we were bringing him back he still had performance issues
that he needed to correct if we were going to continue to work
with him.”
(Id. at 71.)
Huff met with Bibichev on February 23, 2011, to reinstate
his
employment.
reinstatement,
the
Huff
informed
discharge
would
Bibichev
be
that
as
part
of
rescinded
and
replaced
with a reprimand and that a performance improvement plan would
be prepared.
(Plaintiff Dep. at 296-98.)
8
But Bibichev declined
to sign any agreement on the grounds that criticisms of his
performance were false and Flippin was discriminating against
him because he was Russian.
(Id. at 297-98 (“That’s the only
reason why he came up with this false accusation to get rid of
me.”).)
Bibichev
refused
to
acknowledge
any
performance
problems and maintained that he had “done everything correctly.”
(Id. at 301-02.)
As a result of the impasse, Huff sent Bibichev a letter
that informed him of his separation from employment effective
February 27, 2011.
Huff enclosed a revised Record of Written
Warning, Reprimand, or Discharge, which noted:
[Y]ou refused to accept that you had any examples of
poor performance and displayed an attitude that showed
you are unable to address our expectations about the
improvements you need to make in order to remain
employed by TIMCO. While we were willing to reinstate
your employment, we explained that your actions did
require disciplinary action and also a Performance
Improvement Plan to address concerns identified by
your Team Leader and Manager.
(Doc. 25-2, Huff Dep. Ex. 28.)
The document listed (as the most
serious) the incident where Bibichev was seen positioning a boom
lift
poorly
while
hydraulics
were
activated
on
an
aircraft,
which was “about to cause significant aircraft damage.”
(Id.)
It also noted that he was unable to perform work on a timely
basis on certain tasks in an area he should be competent to do,
which
required
Finally,
it
that
noted
others
that
he
be
assigned
“expressed
9
to
his
work.
unacceptable
(Id.)
behavior”
during a meeting with Carl, TIMCO’s HR Manager, during which
“she felt it necessary to contact security” to have him removed
from the property because he “became excessively loud with her
and began taking photos in her office” with his cell phone and
recorded comments on his cell phone, which was against clear
company policy. 7
the
above
(Id.)
situations
The document concluded, “[b]ecause of
and
because
you
demonstrated
no
understanding of the performance problems your Team Leader and
Manager identified, we have chosen to terminate your employment
effective immediately.”
(Id.)
TIMCO presents the declarations of two of it mechanics who
worked for Flippin and who consider themselves Slavic -- Elvis
Sakonjic
(“Sakonjic”),
born
in
(“Manolov”), born in Bulgaria.
Flippin
in
September
2011,
Yugoslavia,
and
Ivan
Manolov
Sakonjic, who began working for
states
that
many
employees
with
different national origins, ethnicities, races, and genders work
or have worked for Flippin, and he has never seen or heard
Flippin mistreat any of them.
He has also never heard Flippin
insult anyone’s national origin, race, or ethnicity and does not
believe
Flippin
supervisor.
ever
(Doc. 28.)
would.
He
considers
Flippin
a
great
Manolov worked for Flippin from August
2011 to February 2012 and again beginning March 8, 2013.
7
This refers to a February 15, 2011, encounter
Bibichev returned to obtain certain documentation.
Dep. at 285-87; Doc. 36 at 6.)
10
He has
with Carl when
(See Plaintiff
never seen or heard Flippin discriminate against anyone based on
where they were born or how they spoke and, in his experience at
TIMCO, Flippin was one of the best supervisors, for whom he
would work anytime.
TIMCO
also
commencement
(excluding
of
(Doc. 27.)
states
the
Bibichev)
performance
or
deficiency
were
were
that
from
lawsuit,
who
September
least
at
2008
TIMCO
exhibited
unable
a
35
pattern
or
Of
discharged.
unwilling
these,
until
of
the
employees
fifteen
work
correct
to
poor
that
were
White,
eleven were African-American, eight were Hispanic, and one was
Asian.
(Doc. 26, John R. Huff Declaration.)
To the best of
Huff’s knowledge, none of the discharged employees (other than
Bibichev) was born in Uzbekistan or in any country that either
had been part of the Soviet Union or was Slavic.
II.
(Id.)
ANALYSIS
Bibichev asserts national origin discrimination under both
Title VII and the public policy of North Carolina, citing N.C.
Gen.
Stat.
§
143-422.2.
In
interpreting
section
143-422.2,
North Carolina courts, looking to federal decisions for guidance
in
establishing
evidentiary
standards
and
principles
of
law,
have applied the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
North Carolina Dep’t of
Corr. v. Gibson, 308 N.C. 131, 136-141, 301 S.E.2d 78, 82-85
(1983); see Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir.
11
1995).
The
parties
have
treated
the
two
causes
of
action
together for purposes of summary judgment, and the court will do
the same.
A.
Summary Judgment Standard
Summary
affidavits,
judgment
and
other
is
appropriate
proper
discovery
where
the
pleadings,
materials
demonstrate
that no genuine dispute as to any material fact exists and the
moving party is entitled to judgment as a matter of law.
Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986).
The party seeking summary judgment bears the burden of
initially demonstrating the absence of a genuine dispute as to a
material fact.
Celotex, 477 U.S. at 323.
If this burden is
met, the nonmoving party must then affirmatively demonstrate a
genuine dispute
as
to
a
material
fact
which
requires
trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
There is no issue for trial unless there is “sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986); Sylvia Dev. Corp. v. Calvert Cnty., 48
F.3d 810, 817 (4th Cir. 1995).
Moreover, on summary judgment,
the nonmoving party is entitled to have the “credibility of his
evidence as forecast assumed, his version of all that is in
dispute accepted, [and] all internal conflicts in it resolved
12
favorably to him.”
Metric/Kvaerner Fayetteville v. Fed. Ins.
Co., 403 F.3d 188, 197 (4th Cir. 2005) (quoting Charbonnages de
France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
“Where the
record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no ‘genuine issue for
trial.’”
B.
Matsushita, 475 U.S. at 587.
Title VII: Wrongful Termination
Title VII makes it an unlawful employment practice for an
employer
“to
.
.
.
discriminate
against
any
individual
with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . national origin.”
42 U.S.C. § 2000e-2(a)(1).
A Title VII plaintiff may survive a
summary judgment motion through one of two avenues of proof.
plaintiff
may
establish
through
direct
or
A
circumstantial
evidence that his protected status, though not the sole reason,
was a “motivating factor” in his employment termination.
See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318
(4th Cir. 2005).
proof
scheme
Douglas.
Id.
Alternatively, he may use the burden-shifting
established
Though
by
the
Supreme
acknowledging
the
Court
in
McDonnell
availability
of
the
first avenue, Bibichev’s opposition to Defendant’s motion for
summary judgment proceeds under the McDonnell Douglas framework.
Thus, the court will do likewise.
13
Under McDonnell Douglas, a plaintiff must first establish a
prima facie case of discrimination, at which point the burden
shifts to the defendant to articulate some “legitimate, nondiscriminatory
Plumbing
reason”
Prods.,
Inc.,
for
530
its
action.
U.S.
133,
Reeves
142
v.
Sanderson
(2000).
If
the
employer carries its burden of production, the presumption of
discrimination raised by the prima facie case “drops out of the
picture” and the ultimate burden remains with the employee to
“prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.”
Id. at 142-43 (quoting Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
The
summary
judgment
standards
McDonnell Douglas framework.
mesh
comfortably
with
the
To establish pretext, a plaintiff
cannot focus on “minor discrepancies that do not cast doubt on
the explanation’s validity, or by raising points that are wholly
irrelevant to it.”
Hux v. City of Newport News, 451 F.3d 311,
315-16 (4th Cir. 2006).
1.
Prima Facie Case
Under the McDonnell Douglas burden-shifting approach:
To
establish
a
prima
facie
case
of
wrongful
termination under Title VII, [the plaintiff is]
required to establish that: (1) [he] is a member of a
protected
class;
(2)
[he]
suffered
an
adverse
employment action; (3) [he] was performing [his] job
duties at a level that met [his] employer's legitimate
expectations at the time of the adverse employment
14
action; and (4) the position remained open or was
filled by similarly qualified applicants outside the
protected class.
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285
(4th Cir. 2004) (en banc opinion); see King v. Rumsfeld, 328
F.3d
145,
149
(4th
Cir.
2003).
The
Supreme
Court
has
characterized a plaintiff’s initial burden in a Title VII case
under McDonnell Douglas as “not onerous,” Burdine, 450 U.S. at
253
(disparate
treatment
case),
and
the
Fourth
Circuit
has
described it as “relatively modest,” Brant v. Aiken Reg’l Med.
Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003).
TIMCO asserts that Bibichev cannot meet his burden to show
either that (1) his job performance was satisfactory to meet
TIMCO’s legitimate expectations, or (2) “other employees who are
not
members
of
the
protected
class
were
retained
apparently similar circumstances.” 8
(Doc. 25 at 15.)
latter
“all
point,
TIMCO
asserts
that
Plaintiff
under
On the
offers
to
satisfy his burden is that on February 28, 2011 [the day after
Bibichev was terminated], ‘an A&P Mechanic named Bennett started
with
Nate
Flippin’s
team.’”
(Doc.
38
at
3.)
Thus,
TIMCO
concludes, “Plaintiff evidently expects the court to assume that
8
Defendant’s articulation of the fourth element varies from that of
Plaintiff.
The Fourth Circuit has used varying formulations in
different opinions for the fourth element.
The Fourth Circuit
recently set out the prima facie elements for wrongful termination
claims and for disparate treatment claims.
See Scott v. Health Ned
Fed. Servs., LLC, 463 F. App’x 206, 208 (4th Cir. 2012) (unpublished
per curiam opinion).
15
this employee filled Plaintiff’s position outside his protected
class.”
(Id.)
To be sure, Bibichev’s showing is weak, at best.
But TIMCO does not contest the claim that this employee took
over Bibichev’s position and was of a different nationality.
Ultimately, the court need not dwell on this element in light of
the reasoning to follow, and the court therefore will assume
that this element has been met.
This
court
plaintiff
was
has
referred
performing
to
up
the
to
required
the
showing
employer’s
expectations as a “relatively easy test.”
that
a
legitimate
Rishel v. Nationwide
Ins. Co., 297 F. Supp. 2d 854 (M.D.N.C. 2003) (quoting Young v.
Lehman, 748 F.2d 194, 197 (4th Cir. 1984)).
a
hollow
one,
however.
Bibichev
claims
The standard is not
that
he
always
things “by the book” and never made a single mistake.
e.g., Plaintiff Dep. at 295.)
It is the perception of the
decision maker which is relevant.”
1067
(4th
Cir.
(See,
But a plaintiff’s “perception of
himself . . . is not relevant.
1062,
did
1980).
Smith v. Flax, 618 F.2d
Bibichev
is
left
to
rely,
therefore, on the review communicated by Crews the month before
he was fired.
As noted, that review was based on information
current as of December 10, 2011, was communicated by a prior
team leader who had not directly supervised Bibichev, and stated
that his performance was satisfactory although at the lowest
rank that would so qualify.
16
It is the “employer's legitimate expectations at the time
of the adverse employment action” that matters.
at 285 (emphasis added).
Hill, 354 F.3d
In this case, TIMCO has presented
substantial evidence that at that time Bibichev was not meeting
its legitimate expectations.
He had created the potential for
significant damage by positioning a boom too near the tail of an
aircraft,
failed
to
perform
work
timely, 9
and
photographed
a
superior (Carl) and recorded her telephone calls in her office
in violation of company policy.
evidence,
other
these events.
than
his
Bibichev has not presented any
self-serving
statements,
to
dispute
Therefore, the court finds that he has failed to
demonstrate that at the time of his termination he was meeting
his
employer’s
legitimate
expectations,
and
Defendant
is
entitled to summary judgment on this basis.
2.
Legitimate, Non-Discriminatory Reason
Even if Bibichev could establish his prima facie case under
McDonnell Douglas, he has not demonstrated that he could survive
the remainder of the burden-shifting test.
case
has
produce
been
a
decision.
shown,
legitimate,
the
burden
shifts
non-discriminatory
Once a prima facie
to
the
defendant
explanation
for
to
the
The burden on a defendant at this stage is one of
9
Flippin testified that although at first Bibichev “was doing good,”
“he began to not get his jobs done in the allotted amount of time and
he would continue to walk around and talk to people. He wouldn’t stay
on his job. He just wasn’t performing to what all the other mechanics
were doing . . . .” (Doc. 36-5, Flippin Dep. at 48.)
17
production,
not
persuasion,
and
the
involve no credibility assessment.”
Hicks, 509 U.S. 502, 509 (1993).
court’s
analysis
“can
St. Mary’s Honor Ctr. v.
At this stage, the employer
“is not required to prove absence of a discriminatory motive,
but merely articulate some legitimate reason for its action.”
E.E.O.C.
v.
Clay
Printing
argues
that
Co.,
955
F.2d
936,
941
(4th
Cir.
1992).
TIMCO
“exhibited
insisted
a
it
discharged
pattern
that
of
his
performance
work
Bibichev
unsatisfactory
was
work
beyond
because
he
performance,
reproach,
and
refused to take any action or participate in any plan to conform
his performance to his employer’s standards.
In other words,
TIMCO did not want to retain an employee who was determined to
substitute his own standards of performance for those of his
employer.”
(Doc. 25 at 17.)
Bibichev does not argue against a
finding that TIMCO has stated a legitimate, non-discriminatory
reason under McDonnell Douglas.
(See Doc. 36 at 11.)
The court
finds, therefore, that the employer’s explanation suffices to
meet this element of the analysis.
3.
Pretext
Once
legitimate,
attempt
to
an
employer
meets
its
non-discriminatory
establish
discrimination
by
that
showing
he
burden
reason,
was
that
18
the
the
of
“the
victim
producing
plaintiff
of
employer’s
a
may
intentional
proffered
explanation is unworthy of credence.”
(internal quotation marks omitted).
whether
Bibichev
has
presented
Reeves, 530 U.S. at 143
The question, therefore, is
or
forecast
evidence
that
Defendant’s reason was not the true reason, but was a pretext
for discrimination, sufficient to survive the summary judgment
motion.
See id.
Bibichev correctly points out that plaintiffs rarely have
direct evidence of an employer’s state of mind.
13.)
(See Doc. 36 at
In that asserting Defendant’s grounds were pretext, he
advances two principal arguments.
First,
witnesses
Bibichev
is
not
contradictions.
contends
that
worthy
of
the
testimony
credence,
citing
of
TIMCO
alleged
But in many cases, the alleged contradictions
are not contradictions at all.
For example, Bibichev asserts
that Flippin gave different reasons for the January 18, 2011
probation extension.
(Doc. 36 at 13-14.)
In his deposition,
Flippin testified that Bibichev “as a mechanic [] wasn’t meeting
the standards that we – I felt like he was supposed to be doing
as a mechanic at TIMCO.”
(Flippin Dep. at 34-35.)
When pressed
for examples, Flippin cited an incident involving a check valve
that Bibichev represents was not mentioned in his termination.
The
record
example
of
makes
clear,
deficient
however,
work
only
that
after
Flippin
provided
he
out
ran
examples, which were previously communicated.
19
of
this
other
(Id. at 35-39.)
Bibichev
also
points
to
a
discrepancy
between
Flippin’s
testimony that their January 12, 2011 meeting took place in the
TIMCO
hangar
and
Nelson’s office. 10
Nelson’s
testimony
that
it
took
place
in
It is undisputed that Nelson and Flippin met
with Bibichev on January 18 in Nelson’s office to discuss the
extension of the probation period.
The notice for the January
18
12
meeting
stated
counseled.”
said
he
was
that
on
January
Bibichev
was
“verbally
When asked about the January 12 counseling, Nelson
present,
stated
it
occurred
acknowledged it was two years ago.
26; see id. at 42.)
in
his
office,
but
(Doc. 36-8, Nelson Dep. at
Whatever the truth, a dispute over where
they met on January 12 is immaterial.
Finally, the court has
examined Bibichev’s other alleged inconsistencies (such as who
typed up the initial termination order and how much work was
undertaken as a result of his report of a lost flashlight), and
finds that they fail to rise to the level of supporting pretext.
Second, Bibichev argues that TIMCO failed to follow its own
policies and procedures when dealing with him, although it did
for others.
He notes that the TIMCO employee handbook “states
that, following the 90-day probationary period, the company will
deal with performance problems not amounting to rule breaking by
issuing the employee a performance improvement plan.”
10
(Doc. 36
In support of Nelson’s statement, Bibichev cites an unrelated page
of Flippin’s deposition.
(Doc. 36 at 14-15.)
It appears the
reference is meant to be to page 26 of Nelson’s deposition.
20
at
19.)
He
points
out
that
his
90-day
probationary
period
expired December 26, 2010, and says that no one mentioned an
extension of the probation period until Flippin extended the
period in January 2011.
(Id.)
According to Bibichev, “Human
Resources Director John Huff testified that the Company always
follows the policies in the Employee Handbook.”
Huff Dep. at 77-79).)
(Id. (citing
He states that February 10, 2011, was the
first time he had received any disciplinary action and that the
employee
handbook
“requires
disciplinary process.”
the
use
of
the
progressive
(Id.)
Bibichev’s arguments on these points are unpersuasive for
two reasons.
First, they misstate Huff’s deposition testimony.
Huff testified that TIMCO took the Handbook “very seriously” and
when asked, “does the management try to follow those policies?”
responded,
“I
believe
(emphasis added).)
the
question,
“In
so.”
(Doc.
36-6,
Huff
Dep.
at
78
Huff similarly answered “I believe so” to
your
experience
then
the
intention
of
the
senior leadership at TIMCO is to follow the policies in the
handbook?”
Huff’s
(Id. at 78-79 (emphasis added).)
testimony
is
clear
that
TIMCO
attempts
In any event,
to
follow
the
employee handbook while recognizing that no system is perfect. 11
11
This is consistent with the employee handbook, whose introduction
informs the employee that “This Handbook is not a contract and the
policies and procedures in it may be amended, revoked, revised or
supplemented by the Company, and – under certain circumstances – the
Company may make exceptions. You should think of this Handbook as a
21
(See id. at 78.)
been
assessed
Second, Bibichev’s objection for not having
graduated
discipline
by
first
being
put
on
a
performance improvement plan ultimately was mooted when TIMCO
became
concerned
that
the
employee
handbook
may
have
contemplated such an approach and in fact offered it to him.
It
was Bibichev’s refusal to participate in such a plan, based on
his contention that he had made no mistakes and was not in need
of any improvement, that led to his termination.
Bibichev also argues that the employee handbook gives him a
right to a peer review that he did not receive.
The employee
handbook does note that sometimes mistakes are made and the Peer
Review
Program
was
developed
to
Plaintiff Dep. Ex. 4 at 34.)
minimize
them.
(Doc.
37-2,
It also states, however, that
certain reasons for discharge are not eligible for peer review.
A non-exhaustive list includes “Failure to successfully complete
a
Performance
Improvement
Plan.”
(Id.
at
35.)
As
noted,
Bibichev was given an opportunity to operate under a performance
improvement plan but declined to do so because he believed he
did not warrant one. 12
guide only . . . .” (Doc. 37-2 at 6.) Further, the employee handbook
notes that progressive discipline is applied “generally” to “minor
infractions,” contrary to Bibichev’s assertion that it was required in
his case. (See id. at 34.)
12
Bibichev also claims that the fact he was treated differently from
others with respect to TIMCO’s employee handbook is evidenced by a
February 25, 2011 aircraft incident report regarding a Boeing 767
serviced by Flippin and two other mechanics.
(Doc 36 at 6-8.)
22
TIMCO also relies on the Fourth Circuit’s recent opinion in
Volochayev v. Sebelius, No. 11-2229, 2013 WL 871193 (4th Cir.
March 11, 2013), an unpublished decision.
Such decisions are
not precedential but have value for the persuasiveness of their
reasoning.
219
(4th
See Collins v. Pond Creek Mining Co., 468 F.3d 213,
Cir.
2006)
(recognizing
that
“we
ordinarily
do
not
accord precedential value to our unpublished decisions” and that
such decisions “are entitled only to the weight they generate by
the persuasiveness of their reasoning” (citation omitted)).
In
Volochayev, the employee, of Russian descent, was removed from
his position after committing a number of errors.
He alleged
According to the report, TIMCO mechanics’ failure to correctly perform
landing gear service caused the main gear to “bottom[] out,” which
could be a safety issue. (Doc. 36 at 6-8 (citing deposition of David
Latimer (Doc. 36-7) & Latimer Dep. Ex. 32 (Doc. 37-13)).)
The
employees were disciplined but not terminated. This example is of no
moment, because Bibichev was terminated not only because of his
violations but also because he refused to participate in the
performance improvement plan.
Bibichev also claims that TIMCO’s reliance on his alleged failure
to timely report the loss of his flashlight as a reason for his
termination was pretextual.
According to TIMCO, about an hour after
Bibichev went home, he came back and said, “I’ve lost my flashlight.
I think it’s inside the leading edge of the airplane.” (Doc. 36-5 at
48.) Flippin testified that they removed all the leading edge panels
but never found it.
At that point, he said, Bibichev “started
claiming that the inspector must have stole[n] it.”
(Id. at 49.)
According to Flippin, “at that point I’d had enough.” (Id.) Bibichev
points to another incident where an employee believed he left a
flashlight in an aircraft that resulted in its disassembly as they
searched unsuccessfully for it, but who was not terminated.
TIMCO
notes that the difference is that this other employee notified the
company once he realized his flashlight was missing and before he left
for the day, in accord with company policy, whereas Bibichev did not,
in violation of the policy. (Doc. 36-4, Crews Dep. at 38-39.) In any
event, TIMCO did not cite this reason in its February 27, 2011
termination notice and nevertheless articulated adequate other
reasons.
23
evidence
of
national
origin
animus
among
his
supervisors,
claiming they made “disparaging remarks about Russians, calling
them rude, insubordinate, and overly fond of Vodka.”
871193, at *2.
his
The Fourth Circuit rejected his argument that
supervisors’
direct
evidence
viewing
the
comments
2013 WL
alleged
of
discrimination.
evidence
were
anti-Russian
in
actually
The
Volochayev’s
made,
comments
court
favor
Volochayev
and
has
constituted
stated,
“Even
assuming
put
forth
the
no
evidence that the stray comments had any direct bearing on his
firing, as required under Phipps, 67 F.3d at 1143.
closer
nexus,
inference
that
we
cannot
conclude
Volochayev’s
impermissible bias.”
that
firing
the
was
Without some
remarks
motivated
raise
by
an
an
2013 WL 871193, at *3.
Here, Bibichev has failed to demonstrate that the comments
attributed to Flippin, albeit his team leader actively involved
in the initial termination decision, were anything more than
stray comments and that they had a direct bearing on his firing.
The comments simply do not demonstrate the “closer nexus” to
raise
an
inference
that
his
firing
was
motivated
by
impermissible bias. 13
13
Although Bibichev’s opposition cites his deposition testimony that
he overheard Flippin refer to him as a “crazy Russian,” “lazy
Russian,” or similar references both during prior employment and later
when Flippin was his team leader (Doc. 36 at 2-4), Bibichev does not
revisit these allegations except with respect to his general assertion
of discrimination based on national origin (id. at 9) or with respect
to statements he made to others regarding his belief that Flippin
24
Therefore, the court concludes that, even if Bibichev could
meet the burden of his prima facie case, there is no genuine
dispute of material fact which could lead a reasonable jury to
find that Defendant’s articulated reasons were a pretext.
TIMCO
is therefore entitled to summary judgment.
III. CONCLUSION
For the reasons noted herein,
IT
judgment
IS
THEREFORE
by
ORDERED
Defendant
that
Triad
the
motion
International
for
summary
Maintenance
Corporation (Doc. 24) is GRANTED, and this action is DISMISSED.
A separate Judgment will issue.
/s/
Thomas D. Schroeder
United States District Judge
June 14, 2013
discriminated against him because he was Russian (id. at 20) or to
point out that two declarants were not Russian despite having a Slavic
background (id. at 22).
This lack of argument is apparently due to
his exclusive focus on the McDonnell Douglas approach.
Even in a
mixed motive case, however, a plaintiff must establish that national
origin was a motivating factor in the decision to terminate
employment. Hill, 354 F.3d at 284. Evidence must not only reflect a
discriminatory attitude, but must also bear directly on the contested
employment decision.
Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.
1995), abrogated on other grounds by Desert Palace, Inc. v. Costa, 539
U.S. 90 (2003). Bibichev has failed to make such a showing.
25
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