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noting that an Employee Handbook providing that employees were "entitled to a 'maximum of $5,000 per year'" for "approved class work in which the employee received a grade of 'B' or better" was "sufficiently definite to establish a unilateral contract"
Summary of this case from Hansen v. Am Gen., LLCOpinion
Civil No. 02-1653 (JRT/FLN)
March 24, 2004
Jordan S. Kushner, Minneapolis, MN, for plaintiff
David J. Duddleston and Natalie Wyatt-Brown, Minneapolis, MN
MEMORANDUM OPINION AND ORDER
Plaintiff Chim N. Obike brought this lawsuit against his former employer, alleging discrimination in employment on the grounds of race, color, national origin, and age. Plaintiff alleges his employer's conduct violated the Minnesota Human Rights Act ("MHRA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff also claimed breach of contract, or in the alternative, promissory estoppel, related to his employer's failure to provide him with tuition reimbursement and a bonus. Defendants' motion for summary judgment was referred to United States Magistrate Judge Franklin L. Noel for a Report and Recommendation. Subsequent to the referral, the parties agreed that there was no basis for the lawsuit against defendant Veeco. Instruments, Inc., therefore the Magistrate Judge recommended dismissal of defendant Veeco. The Magistrate Judge further recommended, in a Report and Recommendation dated January 27, 2004 ("RR"), that the remaining defendant's motion be granted as to Plaintiff's age-based discrimination claim and his breach of contract claim as it related to any bonus payment, but that defendant's motion be denied in all other respects.
With a few exceptions that are not relevant here, the same standards apply to federal Title VII claims and claims raised under the MHRA. See Klein v. McGowan, 198 F.3d 705, 708 (8th Cir. 1999) (addressing MHRA and Title VII claims simultaneously); Todd v. Ortho Biotech. Inc., 175 F.3d 595, 599 (8th Cir. 1999) (noting that Minnesota courts frequently look to Title VII cases when interpreting the MHRA). See also Mems v. City of St. Paul, Dept. of Fire and Safety Services, 327 F.3d 771, 785 n. 11 (8th Cir. 2003) (noting that it is proper to analyze Title VII and MHRA claims under Title VII precedent).
Plaintiff does not object to the Magistrate Judge's recommendations that his claims of age-based discrimination and breach of contract as it relates to any bonus be dismissed. This Court, therefore, does not address this claim.
Defendant objected to the recommendation. The Court has conducted a de novo review of the Plaintiff's objection pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. LR 72.1(c)(2). The Court declines to adopt the report section of the RR. However, the Court does adopt the recommendation based upon the Court's analysis as set forth below. Therefore, the Court grants in part and denies in part defendant's motion for summary judgment.
FACTUAL BACKGROUND
Plaintiff was born and raised in Nigeria, and is a naturalized United States citizen. Plaintiff has a noticeably foreign accent, and is black. In 1989, plaintiff moved from Nigeria to Texas where he received a B.S. in Electronics Engineering Technology from Texas Southern University. He then worked as a technician for manufacturing and computer companies, until January of 2000 when he moved to Minnesota to pursue a Master's Degree in Software Engineering at the University of St. Thomas.
In the summer of 2000, Plaintiff's resume was forwarded to defendant Applied Epi, Inc. ("Applied Epi" or defendant). Applied Epi is a Minnesota company that designs, builds, and sells manufacturing equipment for use in the semi-conductor industry. Applied Epi is now a wholly-owned subsidiary of Veeco, but remains a separate and distinct legal entity. Applied Epi manager Robert Doppelhammer interviewed plaintiff, and offered plaintiff a job as a manufacturing engineer.
Although Veeco. purchased Applied Epi shortly before Plaintiff's employment was terminated, the parties agree there is no basis for Veeco's inclusion in this lawsuit. Veeco. had no day-to-day involvement in hiring and firing decisions or in day-to-day activities. Similarly, no Veeco. employees were assigned to work at Applied Epi during Obike's employment.
Doppelhammer was particularly interested in Plaintiff's experience using an alternate manufacturing process that Applied Epi planned to pursue. However, Applied Epi's pursuit of the alternative manufacturing process was postponed, so plaintiff was assigned to other projects, and assigned to work under a different manager-James Ralston. Plaintiff reported to James Ralston, either directly, or indirectly through Stephen Root or Dan Lewis. Ralston has worked for Applied Epi since December 31, 1991 and currently works as the Director of Engineering of the Systems Group. (Feb. 14, 2002 Aff. of Ralston at ¶ 1.) Ralston had hiring, firing, and discipline responsibility for all employees within his group, including plaintiff. ( Id.) Ralston's supervisor was Marlin Braun, and the president of the company is David Reamer. ( Id.)
Plaintiff reports that Ralston treated him unfairly from the beginning of plaintiff's employment, and claims that unfair treatment was due to his race. Plaintiff reports that he noticed from the first week of his employment that Ralston did not have good intentions toward him. (Obike Dep. at 178-80, Ex. A to the Aug, 5, 2003 Kushner Dep.) Plaintiff overheard Ralston say that Ralston wanted to terminate Plaintiff's employment. ( Id. at 177.) Similarly, plaintiff testified that Ralston told plaintiff directly that he wanted to fire plaintiff. ( Id. at 185.) Plaintiff complains that Ralston frequently criticized him, shouted at him and used obscenities toward him. (Obike Decl. at ¶ 3.) Although plaintiff concedes that Ralston was blunt and critical toward other employees, he believes that the behavior was worse when directed at him, that Ralston treated him much worse than he treated other employees, and it was due to Plaintiff's race. (Obike Dep. at 342.) The opinion that Ralston treated plaintiff more harshly than he treated other employees is seconded by the deposition testimony of Gerald Nelson. (Nelson Dep. at 55, Ex. J to the Aug. 5, 2003 Kushner Dep.)
There is some ambiguity in Plaintiff's deposition regarding whether these were separate incidents, and also regarding when Ralston allegedly made these comments. For the purpose of this motion, the Court construes the facts in the light most favorable to the plaintiff.
Plaintiff also points to racist comments, allegedly made by Ralston. First, plaintiff claims that Ralston called him a "fucking chimp" on one occasion. (Obike Dep. at 342-43.) Gerald Nelson notes that Ralston referred to plaintiff as "chimp" and/or "chimp man" on approximately five occasions. ( Id. at 63, 93.) Nelson also reports that Ralston made the following comment to Nelson when Nelson was first assigned to work with plaintiff: Ralston asked, "What do you call people from Nigeria?" After Nelson said "What?" Nelson replied, "Niggers." (Nelson Dep. at 57-58.) Ralston also voiced his opinion that affirmative action was "bullshit" and that it was not needed in Canada. ( Id. at 60.)
Plaintiff was terminated on September 28, 2001, purportedly for unsatisfactory performance. To "provide the context of the company's decision to terminate" plaintiff, defendant offers a description of projects at which Plaintiff's performance was reportedly unsatisfactory. For example, defendant claims that plaintiff was not able to document the programmable logic controller, and that he could not document cabling for other systems. Defendant provides testimony from several Applied Epi employees who aver that plaintiff did not complete tasks in a timely fashion. ( See, e.g, Hermann Dep. at 19-20, Ex. 5 to the Aug. 1, 2003 Brown Aff; Feb. 14, 2002.)
Defendant explains this task as disassembling and tracking the controller's electrical connections so they could be replicated.
Although these purported deficiencies began almost as soon as plaintiff was hired, there is no record of formal employment counseling or corrective counseling for plaintiff, and there are no written performance reviews indicating Plaintiff's performance was unacceptable. Applied Epi completed two reductions-in-force in the spring of 2001, and plaintiff was not included in either of these RIFs. Ralston testified, however, that plaintiff was told in May of 2001 that he had survived a reduction in force, and that his performance needed to improve. (Ralston Dep. at 55-56, Ex.3 to the Aug. 1, 2003 Brown Aff.; Feb. 14, 2002 Ralston Aff.)
After plaintiff was terminated, Ralston asked employee Dan Lewis to "write up any summary comments" that Lewis had regarding Plaintiff's performance. (Ralston Dep. at 49; Lewis Dep. at 48, attached as Ex. D to the Aug. 5 Kushner Decl.)
Plaintiff offers admissible evidence challenging defendant's explanation of his work product as inferior. He points to the testimony of Steve Root, to whom he reported for some time. Despite Ralston's negative comments to Root about plaintiff, Root testified, in an affidavit to the EEOC, that plaintiff "provided valuable suggestions and ideas" and that Root "considered [plaintiff's] knowledge and skills to be invaluable." (Root Aff, attached as Ex. K to the Aug. 5 Kushner Dec.) Another Applied Epi employee, Daniel Lewis, sent plaintiff an Email stating that "the skills you bring to Applied Epi are of great value." (Lewis Deposition at 44, attached as Ex. D to the Aug. 5 Kushner Dec.)
ANALYSIS
I. Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Only disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Id.
Employment discrimination cases, such as the case before the Court, often "turn on inferences rather than direct evidence," and therefore, this Court heeds the Eighth Circuit's repeated warning that "the court must be particularly deferential to the party opposing summary judgment." Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999); accord Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997); Webb v. Garelick Mfg. Co., 94 F.3d 484, 486 (8th Cir. 1996); Cmwford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994).
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Casualty Surety Co., 612 F.2d 1076, 1077 (8th Cir. 1980). However, the nonmoving party may not merely rest upon allegations or denials in its pleadings, but it must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
II. Termination on the basis of race, color, and national origin
Plaintiff claims that defendant violated Title VII and the MHRA when he was terminated on the basis of his race, color, and/or national origin. The Eighth Circuit continues to apply the McDonnell Douglas burden shifting analysis to claims of racial discrimination under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this familiar analysis, a plaintiff must first establish a prima facie case of racial discrimination by demonstrating that (1) he is a member of a protected class; (2) he was qualified for the job in question; (3) he suffered an adverse employment action; and (4) the facts permit an inference of discrimination. Taylor v. Southwestern Bell Telephone Co., 251 F.3d 735, 740 (8th Cir. 2001). The burden then shifts to the employer, who must provide a "legitimate, nondiscriminatory reason" for the employee's dismissal or rejection. McDonnell Douglas, 411 U.S. at 802. Defendant's burden at this stage of the McDonnell Douglas analysis is one of production; therefore the asserted reasons need only be facially reasonable — not proven. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507(1993).
Traditionally, if defendant satisfies this second step, plaintiff must then demonstrate that the employer's stated reason was merely a pretext for a discriminatory reason or motive. McDonnell Douglas, 411 U.S. at 804. As this Court discussed at length in Brown v. Westaff (USA), Inc., 02-CV-1696, 2004 WL 67654, *3-7 (D. Minn. Jan. 12, 2004), this third step must be modified following the Supreme Court's decision in Desert Palace, Inc. v. Costa, 123 S.Ct. 2148 (2003). The third step, as modified by Desert Palace, requires a plaintiff to demonstrate that race was a motivating factor in the employment action at issue. Brown, 2004 WL 67654 at *5.
The Court remains mindful of the purpose of Title VII, to make unlawful the use of "race . . .[a]s a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m) (emphasis added); see also Desert Palace, 123 S.Ct. at 2151 (quoting the statute). "[A] plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence that race . . . was a motivating factor for any employment practice." Id. at 2155 (internal quotation omitted).
A. Prima facie case
Plaintiff meets his burden to establish a prima facie case. He is black and was born and raised in Nigeria. He was qualified by education and training for the position, and was terminated. Defendant suggests that plaintiff has not met his burden of establishing that he met his employer's legitimate expectations. The facts, as alleged by the plaintiff, have raised a material factual question as to whether plaintiff truly failed to meet his employer's legitimate expectations, or whether the employer's proffered rationale for was false. Ralston, the manager who ultimately determined to terminate Plaintiff's employment, allegedly made racially discriminatory comments, and also made comments that are easily construed as expressing animus on the basis of national origin. Defendant argues that these comments were made in a context too far removed from the employment decision to permit an inference of discrimination. The Court, however, disagrees. Plaintiff was employed by Applied Epi for less than a year and half-he simply was not there long enough for Ralston's comments, which were ongoing, to be too temporally removed to create an inference of discrimination.
Defendant emphasizes that Ralston's supervisor, Martin Braun also participated in the decision to terminate Plaintiff's employment.
B. Defendant's legitimate, non-discriminatory reason
Defendant maintains that plaintiff was terminated because his performance was poor and he did not complete tasks in a timely fashion. Defendant emphasizes that it need not prove that Plaintiff's performance was truly poor; instead, it is enough that the decision-maker honestly based the termination decision on performance. This argument is known as the "honest belief rule." Jennings v. Mid-American Energy Co., 282 F. Supp.2d 954, 962 (S.D. Iowa 2003) (explaining rationale behind rule as "the focus of a discrimination suit is on the intent of the employer. If the employer honestly, albeit mistakenly, believes in the non-discriminatory reason it relied upon in making its employment decision, then the employer arguably lacks the necessary discriminatory intent."); see also Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 559 (7th Cir. 1987) (holding that "a reason honestly described but poorly founded is not a pretext as that term is used in the law of discrimination.").
Although the "honest belief rule appears well established in the Seventh Circuit, as the district court in Jennings discussed, the Eighth Circuit has not adopted the rule, and other circuits have criticized it. Jennings, 282 F. Supp.2d at 963 (citing Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998) (in which Sixth Circuit criticizes rule)); see also Scroggins v. University of Minn., 221 F.3d 1042, 1045 (8th Cir. 2000) (affirming grant of summary judgment to employer where employee could offer no evidence to dispute employer's honest belief that employee was sleeping on the job). The Sixth Circuit criticized the rule because it "does not require an employer to demonstrate that its belief was reasonably grounded on particularized facts that were before it at the time of the employment action," and instead exonerates an employer that provides "an honest reason for firing the employee, even if that reason had no factual support." Smith, 155 F.3d at 806 (internal citation omitted). The district court in Jennings noted that in addition to this critique,
the "honest belief rule" appears to eviscerate the third prong of the McDonnell Douglas analysis as the employee's opportunity to show that the employer's proffered explanation is merely a pretext for discrimination is effectively foreclosed. Keeping in mind that summary judgment should seldom be granted in employment cases, [t]he [c]ourt is extremely hesitant to apply any rule that decidedly reduces an employee's opportunity to show that her employer's actions were motivated by unlawful discrimination.Jennings, 282 F. Supp.2d at 963.
This Court shares the concerns articulated by the Sixth Circuit and by the district court in Jennings. Given the absence of an adoption of this rule by the Eighth Circuit, the persuasive criticisms of the rule, and the import of the Desert Palace decision, the Court will not adopt the "honest belief rule in this case. Declining to adopt the rule, however, does not relieve plaintiff of his obligation to show that race, color, or national origin was a motivating factor in the employment decision.
C. Race, Color, or National Origin as a Motivating Factor
Defendant argues that plaintiff does not allege that Ralston disparaged blacks or other minorities, or treated non-blacks more favorably. This argument must be rejected for the purposes of summary judgment. The record indicates that plaintiff was one of only two black employees, and the only black engineer. (Braun Dep. at 39, attached as Ex. G to the Aug. 5 Kushner Dec.) Plaintiff claims, and offers supporting testimony from another witness, that Ralston treated him much worse than he treated other employees. Given that only two employees were black, it is only reasonable to assume the other employees of whom plaintiff speaks were not black.
The evidence of racially derogatory comments, and comments reflecting national origin bias, coupled with the absence of any contemporaneous evidence of poor performance, could permit a fact finder to determine that defendant's proffered reason for the termination was false, and that racial animus (or bias based on national origin) was a motivating factor in the decision. "[A] Plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). See also Evenson v. Maytag Appliances Sales Co., 02-1688, 2003 WL 21273453 *8-9 (D. Minn. May 27, 2003) (denying employer's motion for summary judgment even though employer presented documented evidence of plaintiff's alleged poor performance, because "there are genuine issues of material fact as to whether [plaintiff] was satisfying the expectations of his employer at the time [of the adverse employment action]")
It is true, as defendant argues, that "[n]ot all comments that reflect a discriminatory attitude will support an inference than an illegitimate criterion was a motivating factor in an employment decision." Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993). However, when the discriminatory comments were made by the decision maker, as they were here, and when the comments were not stray or isolated, as they were not here, such comments are sufficient to support an inference that an illegitimate criterion was a motivating factor. See, e.g., Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 779 (8th Cir. 1995) (holding that statements by non-decision maker do not support inference of discrimination); Simmons v. Oce-USA, Inc., 174 F.3d 913, 915 (8 Cir. 1999) (noting that statements that are remote in time, in this case, two years prior to the decision to terminate, did not support inference of discrimination; also noting that employer offered "comprehensive, objective evidence" of employee's poor job performance); see also Gold Star Taxi and Transp. Service v. Mall of America Co., 987 F. Supp. 741, 746 (D. Minn. 1997) (noting that "stray remarks, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process are insufficient"). It is also notable that in this case, there is evidence that the decisionmaker used a particularly offensive racial epithet, and referred to plaintiff using a racist term, "chimp" or "chimp man." Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 356 (8th Cir. 1997) (stating that use of the word nigger "even in jest" could be evidence of racial antipathy) (citation omitted)).
Ralston's alleged comment to Nelson regarding "What do you call people from Nigeria" as well as Ralston's alleged use of the term "chimp" or "chimp man" can support an inference of discrimination based on race and color, as well as national origin.
Defendant argues that plaintiff cannot create a jury issue simply by disagreeing with defendant's assessment that plaintiff did not complete projects in a timely fashion.
Defendant cites Hannoon v. Fawn Eng'g Corp., 324 F.3d 1041 (8th Cir. 2003) in support of this assertion. In Hannoon the Eighth Circuit affirmed a grant of summary judgment to the employer because employee's allegations did not satisfy the burden of proving pretext. The Circuit rejected the Plaintiff's argument that his poor performance should be excused because he had a heavy workload and short deadlines. Id. at 1047. Unlike the instant case, the employer in Hannoon had written documentation of the Plaintiff's poor work performance, and that documentation preceded the decision to terminate the Plaintiff's employment. Id. at 1047 (noting that, though not required to do so, "the defendants provided a detailed and undisputed documentary account of [plaintiff's] poor performance"). The plaintiff in Hannoon, unlike the plaintiff here, could not create a fact issue as to the employer's motivation in the adverse employment decision. Another critical distinction between Hannoon and the instant case is that in the former, the Court reasoned that "viewed collectively or individually, the balance of the specific instances of allegedly discriminatory conduct cited by Hannoon do not involve race or national origin." Hannoon pointed to comments by his supervisor to him about body odor, and the fact that his request to take Friday afternoons off to observe Muslim prayers was noted in his personnel file. In contrast, the plaintiff here has pointed to specific comments that were doubtless discriminatory.
The Court is aware that Ralston vigorously disputes having made the racist and discriminatory comments. For the purposes of this motion, however, the Court takes all facts in the light most favorable to plaintiff, and therefore must assume the comments were made.
III. Less Favorable Terms and Conditions in Day-to-Day Employment
Although the Court finds that plaintiff has satisfied his burden to survive summary judgment on his claim of discrimination relating to his termination, plaintiff has not offered sufficient evidence to proceed on his claims that he was discriminated against in the day-to-day terms and conditions of employment.
The following allegations form the basis for Plaintiff's complaint that he was subject to less favorable terms and conditions: (1) he did not receive access to his E-mail account or an adequate computer in a timely fashion; (2) he was not given an office, but a cubicle; (3) all minority employees were isolated in one row of cubicles; (4) he received a lower salary than any of the other engineers in his department.
The record does not support these allegations. As to the first allegation, it is undisputed that plaintiff was assigned an E-mail account shortly after his hiring. Although plaintiff asserts that the computer to which he was assigned was inadequate, plaintiff has not provided evidence that all employees were given the same computer, and defendant has provided evidence that computers were assigned as needed. Similarly, although defendant does not dispute that plaintiff was assigned a cubicle, rather than an office, the evidence does not support Plaintiff's contention that all engineers were assigned offices.
Although plaintiff's allegation that all minority employees were assigned to one cubicle row, in the absence of evidence that these assignments were not justified, they do not suffice to support a finding of discrimination. Similarly, although plaintiff has offered evidence that he was paid less than other engineers, he has not supplied evidence that such pay differential was unjustified, and therefore the pay differential is not evidence of discrimination.
Plaintiff's claim of discrimination, as articulated in the second amended complaint, does not separate his termination-based claim and the terms and conditions of employment claim. ( See Second Am. Compl. at ¶ 17. Therefore, the Court does not dismiss a particular count or claim. The Court, however, will not allow Plaintiff's claim of discrimination in the day-to-day work environment to proceed in this case.
IV. Breach of Contract
Plaintiff's breach of contract claim is premised on his conviction that he is entitled to additional tuition reimbursement under defendant's tuition reimbursement policy. In the alternative, plaintiff asserts a claim of promissory estoppel.
Defendant's Employee Handbook provides that all employees are entitled to a "maximum of $5,000 per year" in tuition reimbursement for all approved class work in which the employee received a grade of "B" or better. (Obike Dep., Ex. 25, p. 10, attached as Ex. 1 to the Aug. 1, 2003 Brown Aff.) Defendant concedes that the tuition reimbursement policy in the Employee Handbook is sufficiently definite to establish a unilateral contract. Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983). Defendant argues, however, that plaintiff is not entitled to additional reimbursement, because he received $5,000 in tuition reimbursement in 2001. Plaintiff points out that the $5,000 he received in May of 2001 was for coursework approved and performed in the fall of 2000. Plaintiff argues that he is also entitled to reimbursement for approved coursework in the spring of 2001.
Defendant objects to the Magistrate Judge's determination that a jury issue exists as to whether defendant breached the contract. The Court agrees that no jury question exists, because the Court finds that defendant breached the tuition reimbursement policy as a matter of law. The only reasonable interpretation of the contract is that reimbursement is limited to $5,000 per year, based on when classes were taken. Plaintiff, therefore, is entitled to an additional $5,000, for approved coursework undertaken in 2001 in which he received a "B" or better. See, e.g., Tripodo v. Chase Manhattan Bank, N.A., 576 N.Y.S.2d 760, 761-63 (N.Y. City Ct. 1991) (applying New York contract law, and fundamental principles of contract construction and entering judgment for employee where she sought college tuition reimbursement because the tuition reimbursement agreement constituted unilateral contract and became binding when employee performed act of acceptance by attending classes; further holding that employee was entitled to tuition reimbursement for semester commenced prior to her discharge, even though agreement required employee to be "active staff member" at time of reimbursement).
Neither party provides citation to the record that would assist the Court in determining whether plaintiff received a "B" or better in the 2001 coursework. The Court notes that "[i]t is not the duty of this Court to scour the record in an effort to find support for" a particular claim. In re Grand Casinos, Inc., No. Civ. 4-96-890, 2000 WL 34030564, *7 (D. Minn. March 28, 2000). The Court therefore will not sua sponte grant summary judgment in favor of plaintiff. Ahlberg v. United States, 780 F. Supp. 625, 626 (D. Minn. 1991) (citing In re Caravan Refrigerated Cargo, Inc., 864 F.2d 388, 393 (5th Cir. 1989) ("A district court may grant summary judgment for the non-movant sua sponte."). The Court anticipates, however, that with this guidance, there will be no need for the Court to further address the breach of contract claim.
V. Plaintiff's Motion to Strike
In addition to its objections and memorandum in support of its objections to the RR, defendant submitted excerpts from the depositions of Chim N. Obike, James Ralston, Ron Maltiel, and Gerald W. Nelson. Local Rule 72.1(c)(2) explicitly provides that "the Judge may receive further evidence . . ." in connection with the district court's de novo review of the RR. While the Court agrees that it would have been preferable to have all evidence before the Magistrate Judge, it is not contrary to the Rules to supply additional evidence to this Court.
This case will be placed on the Court's next available trial calendar.
ORDER
Based on the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES defendant's objections [Docket No. 68], and ADOPTS only the Recommendation portion of the Magistrate Judge's Report and Recommendation [Docket No. 67].
Accordingly IT IS HEREBY ORDERED that defendant's motion for summary judgment [Docket No. 53] is GRANTED in part and DENIED in part as follows:
1. The motion is GRANTED as it seeks dismissal of Defendant Veeco. Instruments, Inc. Defendant Veeco. Instruments is DISMISSED from this case.
2. The motion is GRANTED as to Plaintiff's claim of discrimination based on age.
3. The motion is GRANTED as to Plaintiff's claim for breach of contract relating to a bonus.
4. In all other respects, the motion is DENIED.
IT IS FURTHER ORDERED that Plaintiff's motion to strike [Docket No. 71] is DENIED.