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