Opinion
No. CIV 99-0532-PHX-MHM
September 18, 2002
Charles Anthony Shaw, Esq., Law offices of Charles Anthony Shaw, Prescott, AZ, Gary V. Ringer, Esq., William R. Hobson, Esq., Kevin Koelbel, Law Office of William R. Hobson, Tempe, AZ, Glynn W. Gilcrease, Jr., Esq., Law offices of Glynn W. Gilcrease Jr., Tempe, AZ, Patricia Lynne Carpenter, Halvorson Law Firm, Tempe, AZ, for plaintiffs.
Michael D. Moberly, Esq., Carolan Elizabeth Cervetti, Esq., Riley Carlock Applewhite PA, Phoenix, AZ, for defendants.
ORDER
Pending before this Court is Defendants' Motion for Summary Judgment (Doc. #121) as well as Plaintiffs' Motion to Strike Portions of Defendants' Statement of Facts (Doc. #147).
I. Background
This is an age discrimination case in which Plaintiff alleges that he was terminated from Intel Corporation ("Intel") because of his age, 45 years old, in violation of the Age Discrimination in Employment Act ("ADEA") and the Arizona Civil Rights Act ("ACRA"). Plaintiff has also filed claims of negligent infliction of emotional distress, intentional interference with contractual relations, violation of the Employee Retirement Insurance Security Act ("ERISA"), retaliation, breach of contract, breach of the covenant of good faith and fair dealing, and wrongful discharge.
Plaintiff was hired by Intel on September 14, 1981 as an engineer, and worked there for 17 years before his termination at the age of 45 on December 3, 1998. Plaintiff was replaced by a 26-year-old woman who was less experienced.
Intel offers evidence to show that it terminated Plaintiff for unsatisfactory performance for failing to improve in the following performance areas identified as problems in an August 28, 1998, Corrective Action Plan (the "Plan") within the 90 days allowed: work relationships, engineering ownership and leadership/mentoring.
Specifically, the August 28, 1998, Plan identified 1) a failure on the part of Plaintiff to build effective working relationships with technicians and other engineers, resulting in employees failing to communicate potentially important issues to Plaintiff, and his inability to influence their behavior, thus failing to provide effective leadership; 2) a failure to demonstrate engineering ownership of his area, specifically a failure to take the initiative to identify or pursue improvement opportunities, and follow through to verify that tasks have been completed successfully and that his efforts produce tangible results, with a resulting lack of confidence in his abilities by the technicians; and 3)a failure to provide leadership or mentoring/coaching to technicians or other engineers in his group, and a failure to lead efforts to decrease the frequency of acid exposure incidents, and to coordinate cost savings in spares and test Silicon, or identify other cost saving opportunities such as chemical consumption reduction.
Plaintiff claims that he was performing satisfactorily for his entire 17 years at Intel. In support of his claim that he was performing satisfactorily, Plaintiff offers his entire 52-page statement of facts, plus exhibits. In summary, Plaintiff offers testimony from fellow engineer Mark McKinney that Plaintiff performed well when they worked in the same section at Intel from 1987 to 1996. He offers testimony from former supervisor Charlie Johnson that in his opinion Plaintiff had performed well from 1983 to 1987, when Johnson supervised plaintiff, and from 1987 until 1998, when Johnson was in a position to observe Plaintiff. He offers evidence that his 1997-98 performance evaluation signed April 10, 1998, rated him "Successful" and "Equal" with respect to his peers, which is inconsistent with unsatisfactory performance. Plaintiff further offers evidence that following both his 1996-97 and his 1997-98 performance evaluation, he received a merit pay increase and stock option grant, benefits which company policy discourages giving "when the employee displays marginal performance." Plaintiff offers only his own testimony to suggest that the Corrective Action Plan was unfairly imposed on August 28, 1998, and unfairly implemented.
Plaintiff claims that Intel's stated reasons for terminating him were merely a pretext to terminate him based on his age. Plaintiff offers as evidence that he was discriminated against because of his age that he was the oldest of four working engineers in his group, and he was replaced by a less-experienced 26-year-old engineer who had just recently become a process engineer, and whose performance reviews he asserts were no better than his. He offers as additional evidence to support his claim of age discrimination a similar age discrimination complaint filed in 1997 by Mr. Johnson and Mr. Johnsons' and Mr. McKinney' s testimony that they believed Intel methods of rating employees on whether they were slower than their peers and its "move up or move out" policy had a disparate impact on older employees. He offers evidence to suggest that his supervisor, Peter Faux, was aware of Intel policies of ranking peers that Plaintiff claims have the effect of forcing longer term, and thus generally older, employees out of Intel. He also offers an undated memorandum purportedly authored by former Intel Human Resources Director Kirby Dyess that refers to a need to move "poor performers or blockers" out of Intel, along with testimony from a former Intel manager that the term blocker refers to "a person who is happy in his job and won't get out of the way for a younger person in a lower rank to advance." Finally, he offers a transcript of an interview with Intel Chairman of the Board Andrew S. Grove on April 26, 1999, several months after he was terminated, that quotes him as saying in part: "Reality, dirty reality, is people will not be able to continue to do the same thing that they have done in their careers before . . . They have to adapt, they have to take new jobs. They will lose jobs. . . . People 45-50 in mid-life, all of a sudden the ground crumbles beneath them . . . People will have to change their jobs. And the rate of change of jobs because the rate of change of business is faster than it's been."
II. Standard of Review
A motion for summary judgment may be granted only if the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To defeat the motion, the non-moving party must show that there are genuine factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356 (1986). The Court views the evidence in the light most favorable to the nonmoving party, Plaintiff here, and draws any reasonable inferences in the nonmoving party's favor. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996).
A. ADEA Claim
Under the governing law, Plaintiff first must make a prima facie case of age discrimination under the ADEA by showing that he was 1) more than 40 years of age when he was placed on the Corrective Action Plan and later terminated; 2) he was performing his job in a satisfactory manner; 3) he was subject to an adverse employment action; and 4) he was replaced by a substantially younger employee with equal or inferior qualifications. See Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000) (applying McDonnell Douglas framework to age discrimination case)
"As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because the ultimate question is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by a factfinder, upon a full record." Chuang v. University of California Davis, 225 F.3d 1115, 1124 (9th Cir. 2000).
In discrimination claims brought under the ADEA, although the standard summary judgment principles apply, the burden shifting analysis is used to determine if summary judgment is appropriate. Rose v. Wells Fargo Co., 902 F.2d 1417, 1420 (9th Cir. 1990). Thus, to prevail on a claim of discrimination, a plaintiff initially has the burden of establishing a prima facie case of discrimination. Reeves, 530 U.S. at 142, 120 S.Ct. at, 2106; Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998).
The degree of proof Plaintiff must offer to establish a prima facie case is minimal — he need only offer evidence that "gives rise to an inference of unlawful discrimination." Id. The prima facie case may be based on direct evidence of discriminatory intent or the presumption arising from the four factors initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973).
Once a plaintiff has established a prima facie case of discrimination, the burden shifts to the defendant to produce evidence that the plaintiff was fired for a legitimate, nondiscriminatory reason. Reeves, 530 U.S. at 142, 120 S.Ct. at 2106. The defendant's burden is one of production, not of persuasion, for the burden of persuasion remains at all times with the plaintiff. Id. at 142-43, 120 S.Ct. at 2106. As such "the determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 2748 (1993).
Once the defendant has produced sufficient evidence to support its nondiscriminatory explanation, the Plaintiff must prove that the explanation offered by the defendant is pretextual and unworthy of credence. Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. To do so at this stage, Plaintiff must "`tender a genuine issue of material fact as to pretext in order to avoid summary judgment.'" Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994); see also Merrick v. Farmers Ins. Group 892 F.2d 1434, 1437 (9th Cir. 1990) ("To avoid summary judgment, [plaintiff] must demonstrate a genuine issue of material fact as to pretext"). Accordingly, Plaintiffs burden is to offer admissible evidence that would permit "a reasonable factfinder to conclude either (a) that the alleged reason for [his] discharge was false, or (b) that the true reason for his discharge was a discriminatory one." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996) (emphasis in original). Plaintiff must present "specific and substantial evidence" that the stated reason for termination is unworthy of credence. See Goodwin, 150 F.3d at 1222.
B. ACRA Claim
Because the Arizona Civil Rights Act is modeled after federal employment discrimination law, federal case law is persuasive in interpreting ACRA. See Timmons v. City of Tucson, 171 Ariz. 350, 354, 830 P.2d 871, 875 (Ct.App. 1991).
C. Retaliation Claim
A retaliation claim requires Plaintiff to show that 1) he was engaging in a protected activity; 2) he was subjected to an adverse employment action; and 3) a causal link exists between the protected activity and the adverse employment action. Wallis, 26 F.3d at 889.
D. Interference with Contract Claim
The elements of a state law claim of intentional interference with employment contract are: 1) plaintiff has an employment agreement; 2) individual defendants knew of the agreement; 3) individual defendants intentionally interfered with the agreement; 4) the individual defendants' conduct was improper; and 5) plaintiff suffered damage as a result. See Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 386-88, 710 P.2d 1025, 1041-43 (1985).
E. Plaintiff's Negligent Infliction of Emotional Distress Claim
A state law claim of negligent infliction of emotional distress claim is shown when an actor causes emotional distress to a third party, when he should have realized that his conduct involved an unreasonable risk of causing emotional distress, and that this distress might result in illness or bodily harm. The distress must be manifested as a physical injury. See Keck v. Jackson, 122 Ariz. 114, 116-17, 593 P.2d 668, 670-71 (1979).
III. Discussion
Plaintiff has not disputed that Defendants are entitled to summary judgment on his claims for intentional infliction of emotional distress, violation of ERISA, breach of contract, breach of the covenant of good faith and fair dealing, and wrongful discharge. Therefore, Defendants are entitled to summary judgment on these claims, which were asserted in Counts II, VI, VIII, IX and X of Plaintiffs Second Amended Complaint. Fed.R.Civ.P. 56(e); see also Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356.
Plaintiff, however, has offered argument and evidence to challenge the Defendants' motion for summary judgment on Count I, the claimed violation of the federal Age Discrimination in Employment Act ("ADEA"); Count III, the state common law claim of negligent infliction of emotional distress; Count IV, the state law claim of intentional interference with contractual relations; Count V, violation of the Arizona Civil Rights Act ("ACRA"); and Count VII, retaliation for filing a claim of age discrimination with the EEOC.
A. Age Discrimination
Plaintiff alleges that he was terminated from Intel Corporation ("Intel") because of his age, 45 years old, and replaced by a less-qualified 26-year-old engineer, in violation of the Age Discrimination in Employment Act ("ADEA") and the Arizona Civil Rights Act ("ACRA"). Because ACRA is modeled after federal employment discrimination law, federal case law is persuasive in interpreting ACRA.See Timmons, 171 Ariz. at 354, 830 P.2d at 875. This Court will therefore address both claims together. See id.
Under the governing law, Plaintiff first must make a prima facie case of age discrimination by showing that he was 1) more than 40 years of age when he was placed on the Corrective Action Plan and later terminated; 2) he was performing his job in a satisfactory manner; 3) he was subject to an adverse employment action; and 4) he was replaced by a substantially younger employee with equal or inferior qualifications. See Reeves, 530 U.S. at 142, 120 S.Ct. at 2106 (applying McDonnell Douglas framework to age discrimination case). Under the McDonnell Douglas framework, "the requisite degree of proof necessary to establish a prima facie case . . . on summary judgment is minimal and does not even need to rise to a level of preponderance of the evidence." Wallis, 26 F.3d at 889; accord, Goodwin, 150 F.3d at 1220.
1. Prima Facie Case
It is uncontested here that Plaintiff was 45 years old at the time he was placed on a Corrective Action Plan and then terminated, and that he was replaced by a 26-year-old employee with fewer years of experience.
Defendants, however, dispute that experience was a qualification for this position.
Plaintiff argues that the evidence is abundant in the record that he was an excellent performer at Intel throughout his 17 years of service, up to the time he was terminated. He cites in support of this argument his entire 52-page statement of facts, with exhibits thereto. Plaintiff has done a disservice to the Court and Defendants by not narrowing the scope of their review of the record. This Court will address here only the evidence that Plaintiff offers to show that he was satisfactorily performing in the time period immediately preceding the imposition of the Corrective Action Plan, on August 28, 1998, and in the 90 day period immediately preceding his termination.
Plaintiff first offers the testimony of two former supervisors and a coworker that he was performing satisfactorily during the time they worked at Intel or supervised him. Plaintiff offers the testimony of Charlie Johnson, who was his supervisor from 1983 to 1987, that in Mr. Johnson's opinion, Plaintiff was performing well on his job from 1990 to 1998. Mr. Johnson, however, testified that he went on leave from Intel in 1997. He therefore would have been able to observe Plaintiffs performance only up to 1997. Plaintiff also offers the testimony of Christopher Teutsch, who was his supervisor for six months in 1992, that he was performing well at that time. Mr. Teutsch, however, testified that he did not know what Plaintiffs leadership skills were after 1992. He reported that he was present at a session in 1998 where some managers believed that Plaintiff was not doing well, and he suggested that these deficiencies needed to be communicated to Plaintiff. He reported, however, that he had no personal knowledge of whether Plaintiffs performance needed to improve. Plaintiff also offers the testimony of Mark McKinney, a fellow engineer, that Plaintiff performed satisfactorily in his position from 1987 to 1996. Again, this testimony does not address whether Plaintiff was performing satisfactorily in August 1998, at the time the Corrective Action Plan was imposed, or in the 90 days following its imposition before Plaintiff's termination.
Plaintiff also offers evidence that for two years prior to his termination Intel awarded him merit pay increases and stock options, which company policy suggests should not be given to "employees who demonstrate marginal performance." Additionally, he offers evidence to show that he was not ranked as low among his peers as Defendant claimed in 1996-97. And he offers his 1997-98 performance evaluation showing that he was performing "satisfactorily" in his job, and on an "equal" ranking of performance trend with his peers, issued only four months before the Corrective Action Plan was imposed.
Finally, Plaintiff offers his own detailed critique of the criticisms made in the Corrective Action Plan and his supervisor's written assessments of his failures to improve the performance problems in the 90 days following its issuance. Plaintiff correctly concedes that his own subjective personal judgment is not sufficient to create a genuine issue of material fact on the quality of his performance on the job. See Bradley v. Harcourt, Brace Co., 104 F.3d 267, 270 (9th Cir. 1996).
Arguably, however, Plaintiff has offered the "minimal evidence" sufficient to make a prima facie case that he was performing satisfactorily four months before the adverse employment actions were taken, and thus has made a prima facie case of age discrimination.Wallis, 26 F.3d at 889; accord, Goodwin, 150 F.3d at 1220.
2. Legitimate Nondiscriminatory Reason
Once a plaintiff has established a prima facie case of discrimination, the burden shifts to the defendant to produce evidence that the plaintiff was fired for a legitimate, nondiscriminatory reason. Reeves, 530 U.S. at 142, 120 S.Ct. at 2106. The defendant's burden is one of production, not of persuasion, for the burden of persuasion remains at all times with the plaintiff. Id. at 142-43, 120 S.Ct. at 2106. As such "the determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 2748 (1993)
Intel offers evidence to show that it found on August 28, 1998 that Plaintiff was failing to satisfactorily perform in the areas of work relationships, engineering ownership and leadership/mentoring. The written Plan identified a failure on the part of Plaintiff to build effective working relationships with technicians and other engineers, resulting in employees failing to communicate potentially important issues to Plaintiff, and his inability to influence their behavior, thus failing to provide effective leadership; a failure to take the initiative to identify or pursue improvement opportunities, and follow through to verify that tasks have been completed successfully and that his efforts produce tangible results, resulting in a lack of confidence in him by technicians; and a failure to provide leadership or mentoring/coaching to technicians or other engineers in his group, and reluctance to volunteer ideas or experience in group meetings and to coach other engineers through difficult issues.
Defendant Intel has met its burden to show that Plaintiff was fired for a legitimate, nondiscriminatory reason by offering admissible evidence to show that it terminated Plaintiff for unsatisfactory performance, specifically failing to improve performance problems identified in the August 28, 1998, Corrective Action Plan. See Reeves, 530 U.S. at 142, 120 S.Ct. at 2106.
3. Pretext
Once the defendant has produced sufficient evidence to support its nondiscriminatory explanation, the Plaintiff must prove that the explanation offered by the defendant is pretextual and unworthy of credence. Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. To do so at this stage, Plaintiff must "`tender a genuine issue of material fact as to pretext in order to avoid summary judgment.'" Wallis, 26 F.3d at 890; see also Merrick, 892 F.2d at 1437. Accordingly, Plaintiffs burden is to offer admissible evidence that would permit "a reasonable factfinder to conclude either (a) that the alleged reason for [his] discharge was false, or (b) that the true reason for his discharge was a discriminatory one." Nidds, 113 F.3d at 918 (emphasis in original). "These two approaches are not exclusive; a combination of the two kinds of evidence may in some cases serve to establish pretext so as to make summary judgment improper." Chuang, 225 F.3d at 1127. Plaintiff must present "specific and substantial evidence" that the stated reason for termination is unworthy of credence. See Goodwin, 150 F.3d at 1222.
In support of his claim that "the alleged reason for [his] discharge was false," Plaintiff offers the same evidence that he offered to make his prima facie case that he was performing satisfactorily on the job when the adverse employment action was taken. See Nidds, 113 F.3d at 918. As outlined above, this evidence is arguably minimally sufficient to make Plaintiffs prima facie case. It is not, however, by itself sufficient to meet his burden to show that this reason was a pretext for intentional age discrimination. See Reeves, 530 U.S. at 148-49, 120 S.Ct. at 2109 (noting that whether judgment as a matter of law is appropriate entails consideration of a number of factors, including the strength of plaintiffs prima facie case and the probative value of the proof that the employer's explanation is false); Anderson v. Stauffer Chem Co., 965 F.2d 397, 402-03 (7th Cir. 1992) (pretext cannot be established simply by evidence that the employer's assessment was wrong; the issue is whether the employer honestly believes in the reason it offers).
Plaintiff offers additional indirect and direct evidence "that the true reason for his discharge was a discriminatory one." See id. First, he offers evidence that he was 45 years old and was replaced by a 26-year-old with less experience who had just recently become a process engineer. Plaintiff, however, has failed to show that his supervisors were aware of his age, undermining to some extent Plaintiffs claim that he was intentionally discriminated against because of his age. See Robinson v. Adam, 847 F.2d 1315, 1316 (9th Cir. 1987 (affirming summary judgment for employer in a discrimination case where plaintiff job applicant made no showing that his employer knew he was in the protected class).
Second, he offers evidence that Mr. Johnson filed a similar age discrimination complaint in 1997. Mr. Johnson, however, subsequently voluntarily withdrew his complaint, and testified that he did not believe that his termination from Intel resulted from age discrimination. Under those circumstances, the evidence does not appear to this Court probative on the issue of whether the decision to terminate Plaintiff was discriminatory. See e.g., Blair v. Colonnas Shipyard, Inc., 52 F. Supp.2d 687, 696 (E.D. Va. 1999) (the assertion that another employee filed a discrimination charge against the employer is simply irrelevant).
Third, Plaintiff offers testimony from Mr. Johnson and Mr. McKinney that they believed Intel's methods of ranking employees on whether they were "slower," "equal" to, or "faster" than their peers and its "move up or move out" policy had a disparate impact on older employees. He offers evidence to suggest that his supervisor, Peter Faux, was aware of these Intel policies that Plaintiff claims had a disparate impact on older and longer-term employees out of Intel, by virtue of an e-mail directed to him in 1996 by Mr. McKinney regarding the need to move poor performers out of Intel. Plaintiff, however, has brought a claim of discrimination based on a theory of "disparate treatment," and not "disparate impact." Indeed, Plaintiff has failed to offer any evidence beyond his testimony and the testimony of Mr. Johnson and Mr. McKinney that these policies had a disparate impact on older employees. Even if he were making a claim of "disparate impact," this evidence would not suffice. See Webb v. Derwinski, 868 F. Supp. 1184, 1190 (E.D. Missouri 1994) (a showing of disparate impact is generally made by the use of statistics). Moreover, neither Mr. Johnson nor Mr. McKinney offered any testimony that might suggest these policies were intentionally designed to adversely affect older employees, and thus their testimony is not relevant to Plaintiffs claim that he was the object of intentional discrimination. See Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988) (plaintiff alleging discrimination under a disparate treatment theory must show that the policy was designed to discriminate against the protected class). In a "disparate treatment" case, "only evidence of the actual decisionmaker's motive is relevant." Cuevas v. Monroe Street City Club, Inc., 752 F. Supp. 1405, 1412 (N.D. Ill. 1990). Here, there is no dispute that Peter Faux and John Glancy were the Intel employees who actually decided to terminate Plaintiff. Thus, it is their motives alone that are at issue. See id.
Finally, Plaintiff offers evidence that he claims shows that the Intel culture had a corporate culture of discriminatory animus that is probative on the issue of whether Mr. Faux and Mr. Glancy intentionally discriminated against him on the basis of his age. He offers evidence that Andrew S. Grove, chairman of the board of Intel, made statements in a television interview in April 1999, four months after Plaintiff was terminated, indicating that the Intel culture fostered age discrimination. A transcript of the interview quotes Grove as saying in part: "Reality, dirty reality, is people will not be able to continue to do the same thing that they have done in their careers before . . . They have to adapt, they have to take new jobs. They will lose jobs. . . . People 45-50 in mid-life, all of a sudden the ground crumbles beneath them . . . People will have to change their jobs. And the rate of change of jobs because the rate of change of business is faster than it's been." He also offers an affidavit from Christopher Teutsch, a former manager at Intel, that refers to an undated memorandum from Human Resources Director Kirby Dyess that states in pertinent part "We are not moving poor performers or `blockers' down in grade or out of Intel." Mr. Teutsch states that the word "blocker"in this memorandum means "a person who is happy in his job and won't get out of the way for a younger person in lower rank to advance." Plaintiff claims that these comments from the chairman of the board of Intel, and from the Human Resources director, reflect a culture of age discrimination at Intel from which this Court can infer intentional discrimination against Plaintiff. This Court disagrees, particularly in view of Plaintiffs failure to show that this supervisors were even aware of these comments. This Court does not consider these two comments to rise beyond the level of "stray age-related remarks" such as those considered and rejected as probative of intentional discrimination in Nesbit v. Pepsico, Inc. 994 F.2d 703, 705 (9th Cir. 1993) ("old timers"), Rose, 902 F.2d at 1420 ("old boy network"), and Merrick, 892 F.2d at 1438-39 ("bright, intelligent, knowledgeable young man").
Plaintiff suggests that his supervisor, Peter Faux, knew of the Kirby Dyess memorandum because it was referred to in Mr. McKinney's e-mail, but this is not clear from the e-mail, and Mr. Faux denies ever having seen the Dyess memo. The Dyess Memo is not dated, and it is not clear from the record when it was drafted, or to whom it was sent.
The Court finds that Plaintiff has failed to present sufficient colorable evidence to show that the Defendants' reason for terminating him was merely a pretext for intentional age discrimination, and therefore he has failed to create is a material issue of fact preventing summary judgment on the ADEA and ACRA claims.
B. Retaliation
A retaliation claim requires Plaintiff to show that 1) he was engaging in a protected activity; 2) he was subjected to an adverse employment action; and 3) a causal link exists between the protected activity and the adverse employment action. Wallis, 26 F.3d at 889. Plaintiff claims that Intel retaliated against his filing a discrimination claim with the EEOC six days after he was placed on the Corrective Action Plan by treating him unfairly and harrassing him during the following 90 days, and then unjustly terminating him. Plaintiff has failed to offer any evidence indicating that the evaluations by his supervisors were any different after he filed the EEOC claim than they were before he filed the EEOC claim. For the same reasons his discrimination claim fails, his retaliation claim must fail. Plaintiff has failed to offer evidence sufficient to create a material issue of fact on whether supervisors poor evaluation of his performance after he was placed on the Corrective Action Plan was a mere pretext for retaliation for his having filed an EEOC claim. See Anderson, 965 F.2d at 403 (pretext cannot be established simply by evidence that the employer's assessment was wrong).
C. Intentional Interference with Contractual Relations
Summary judgment is also appropriate on Plaintiffs intentional interference claim, as it relies on a finding that the individual defendants violated the ADEA and ACRA. The elements of a state law claim of intentional interference with employment contract are 1) plaintiff has an employment agreement; 2) individual defendants knew of the agreement; 3) individual defendants intentionally interfered with the agreement; 4) the individual defendants' conduct was improper; and 5) plaintiff suffered damage as a result. See Wagenseller, 147 Ariz. at 386-88, 710 P.2d at 1041-43. The individual defendants' participation in the decision to terminate Plaintiff may form the basis of an intentional interference claim under Arizona law. See id. However, the only basis for finding intentional interference by the supervisors is if they engaged in conduct that violated established public policy or statute. See id. Because Plaintiffs claim of violation of ADEA and ACRA fails, his claim of intentional interference with contract also fails. See id
D. Negligent Infliction of Emotional Distress
A state law claim of negligent infliction of emotional distress claim is shown when an actor causes emotional distress to a third party, when he should have realized that his conduct involved an unreasonable risk of causing emotional distress, and that this distress might result in illness or bodily harm. The distress must be manifested as a physical injury. See Keck 122 Ariz. at 116-17, 593 P.2d at 670-71. Plaintiff bases this claim on as well on his supervisors imposing the Corrective Action Plan on him on August 28, 1998, and terminating him on or about December 3, 1998. Plaintiffs claim fails as a matter of law on two grounds. First, Arizona does not recognize a claim for negligent termination of employment, and this claim of negligent infliction of emotional distress in termination of employment must therefore also fail. See Albers v. Edelson Tech. Partners. L.P., 201 Ariz. 47, 54, 31 P.3d 821, 828 (Ct. App. 2001) (specifically rejecting claims for negligent termination of employment). Second, even if Arizona did recognize such a claim within the employment setting, the claim would be preempted by the remedies available under the state's worker's compensation laws. Plaintiff claims that workers' compensation does not preempt his harassment complaint because the harassment was not "an accidental event causing unexpected, unusual or extraordinary injury" within the meaning of the act. Plaintiff is wrong. See LaPare v. Industrial Comm'n, 154 Ariz. 318, 321, 742 P.2d 819, 822 (Ct.App. 1987) (holding that alleged discriminatory actions by employer qualify as "unusual, unexpected, and extraordinary"). Thus, Plaintiffs claim of negligent infliction of emotional distress, even if cognizable under Arizona law, would be preempted by the workers' compensation law. See Irvin Investors, Inc. v. Superior Court, 166 Ariz. 113, 115, 800 P.2d 979, 981 (Ct.App. 1990) (employee's claim for psychological injury as a result of sexual harassment by fellow employee was preempted by the exclusive remedy of workers' compensation). Summary judgment therefore is appropriate on Plaintiffs claim of negligent infliction of emotional distress.
Accordingly,
IT IS ORDERED That Defendants' Motion for Summary Judgment (Doc. #121) is GRANTED. IT IS FURTHER ORDERED That Plaintiffs' Motion to Strike Portions of Defendants' Statement of Facts (Doc. #147) is VACATED AS MOOT. IT IS FURTHER ORDERED That Clerk of the Court shall ENTER JUDGMENT ACCORDINGLY.