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McCLAM-BROWN v. BOEING COMPANY

United States District Court, E.D. Pennsylvania


July 22, 2004.

NADINE McCLAM-BROWN, et al., Plaintiffs,
v.
THE BOEING COMPANY, Defendant.

The opinion of the court was delivered by: MARVIN KATZ, Senior District Judge

ORDER

AND NOW, this ____ day of July, 2004, upon consideration of Defendant's Motion for Summary Judgment Against Nadine McClam-Brown, the response thereto and after a hearing, it is hereby ORDERED that said Motion is GRANTED based on the following facts as to which there is no genuine dispute:

1. The Boeing Company designs and manufactures aerospace products.

  2. Nadine McClam-Brown has worked as an engineer for Boeing since 1978. Deposition of Nadine McClam-Brown ("McClam-Brown Dep.) 19, 37, 8-40; Work History.

  3. McClam-Brown began work at Boeing's Seattle facility and in 1993 voluntarily transferred to the Ridley Park, Pennsylvania facility to work in the Composites Group of Materials Engineering. McClam-Brown dep. 37-38, 43-44, 60, 62, 66-67.

  4. McClam-Brown received ethics training that included a discussion of unlawful employment discrimination. McClam-Brown Dep. 42-43. 5. Boeing posted its EEO policy and regularly circulated memos regarding discrimination and harassment. See Deposition of Constance Perry-Rose ("Perry-Rose Dep.") ¶ 404-406.

  6. Boeing also maintained an Equal Employment Opportunity ("EEO") office for employees to go to if they felt as if they had been treated unfairly. McClam-Brown Dep. 90, 97.

  7. McClam-Brown never filed a complaint with Boeing's EEO office. Id. at 97.

  8. McClam-Brown worked in the Composites group of the Materials Engineering Department on non-metal composites and electronics. McClam-Brown Dep. at 66.

  9. Bob McIntyre was plaintiff's first manager in Ridley Park. McClam-Brown Dep. 107. McClam-Brown got along well with McIntyre and he treated her fairly. Id. at 109.

  10. McIntyre was replaced by Patrick Dolan as McClam-Brown's manager. McClam-Brown Dep. 108-109; Ex. D, Dolan Dec. ¶ 1. Dolan reported to Roy Cunningham, the second level manager. Ex. D, Dolan Dec. ¶ 2.

  11. McClam-Brown has no complaints about this. McClam-Brown Dep. 213.

  12. Other engineers in Materials Engineering included Ken Dabundo and Kristin Harris. Id. at 112-113.

  13. In 1993, Dabundo was the "lead" for the group working on the Chinook aircraft and had been working at Boeing in the Composites area his entire career. McClam-Brown dep. 119; Declaration of Ken Dabundo ("Dabundo Dec.") ¶¶ 1-2.

  14. In some groups at Boeing, there is a so-called "lead." The "lead" is not a formal position, but rather a role — an informal way that coworkers refer to an employee who has excelled as a leader and who helps to coordinate the group's efforts. Ex. E, Dabundo Dec. ¶ 3; Dolan Dec. ¶ 4. The lead, however, is not a Boeing manager and there is no change in pay or paycode associated with being a lead. Id.; McClam-Brown Dep. 52, 55. It is completely within the discretion of the manager whether or not to have a lead. Ex. D, Dolan Dec. ¶ 4; Ex. E, Dabundo Dec. ¶ 3.

  15. After Dolan became the new manager, plaintiff worked on the V-22 with a small group of her coworkers, including Kristin Harris. McClam-Brown Dep. 116, 118; Ex. D, Dolan Dec. ¶ 2.

  16. There was no lead in the V-22 Composites group under Dolan. McClam-Brown Dep. 120; Ex. D, Dolan Dec. ¶ 5. He expressed that he wanted all of the engineers to act like leaders, to be proactive about getting work, to facilitate the project, and to assume more responsibility. McClam-Brown Dep. 121, 187; Ex. D, Dolan Dec. ¶ 5.

  17. Dolan regularly told all of the employees regardless in the group that he wanted V-22 Composites group to assume responsibility for themselves and become more proactive about getting their work. McClam-Brown Dep. 236-238, 330; Ex. D, Dolan Dec. ¶ 5.

  18. McClam-Brown disagreed with Dolan's management decisions about how the group would be best served. McClam-Brown Dep. 121.

  19. The employees in the V-22 Composites group including McClam-Brown did not get along and did not work well as a team. McClam-Brown Dep. 122-123; Ex. D, Dolan Dec. ¶ 6. The group often bickered. Ex. D, Dolan Dec. ¶ 6; Ex. E, Dabundo Dec. ¶ 4.

  20. The lack of teamwork in McClam-Brown's group was a serious problem. Dolan Dec. ¶ 6. Plaintiff attended a meeting with Cunningham and the group's employees, during which Cunningham told them that the bickering had to stop or there would be consequences. Id. 21. Dolan warned McClam-Brown and the rest of the group that they were developing a bad reputation and that their lack of teamwork was going to reduce or eliminate their raises. McClam-Brown Dep. 188; Ex. D, Dolan Dec. ¶ 6.

  22. While she worked in Seattle it was McClam-Brown's practice to keep her Boeing managers informed about what she was working on, she did not continue the practice with Dolan or any other manager at the Ridley Park facility. McClam-Brown Dep. 153; Ex. D, Dolan Dec. ¶ 7.

  23. Dolan frequently asked McClam-Brown for information about what she was doing, but rarely, if ever, got a response. Ex. D, Dolan Dec. ¶ 7.

  24. McClam-Brown rarely, if ever, even sent her manager electronic mail about her work. McClam-Brown Dep. 153.

  25. The lack of communication between Dolan and McClam-Brown was a problem because it made it more difficult for Dolan to manage the group. Ex. D, Dolan Dec. ¶ 7.

  26. McClam-Brown understood that the lack of communication among the group members had to change and during her evaluations, she freely acknowledged that she needed to improve her own role in those communications. McClam-Brown Dep. 321; Ex. D, Dolan Dec. ¶ 7.

  27. Many employees in Composites worked very long hours, often hundreds of hours of overtime per year. Id. Mr. Dabundo and Ms. Harris were exemplary performers. Id. McClam-Brown did not work many overtime hours was told that she needed to increase her output and take on more of a leadership role. Mc-Clam Brown Dep. 167, 183-184, 186-187; Ex. D, Dolan Dec. ¶ 8.

  28. While the group was busy, McClam-Brown pursued a real estate career outside of Boeing. McClam-Brown Dep. 19-20, 29-30, 34. 29. Boeing had a Pay-for-Performance policy. Ex. D, Dolan Dec. ¶ 10; Ex. E, Dabundo dec. ¶ 10. The policy rewards employees who demonstrate not only technical excellence, but also enthusiasm and teamwork. Id. Boeing looks for employees who demonstrate a "can do" attitude. Id.

  30. Managers rank employees within groups for the purpose of determining their salary raises based on the pay-for-performance philosophy including its emphasis on teamwork. McClam-Brown Dep. 134-136. The ranking is then combined with the available budget and a salary planning computer program determines the appropriate raise. McClam-Brown Dep. 142; Ex. D, Dolan Dec. ¶ 10; Ex. E. Dabundo Dec. ¶ 10.

  31. The pay-for-performance system is designed to emphasize the total salary and not the annual increase in order to compensate employees appropriately who did similar jobs. Id.

  32. One goal of the Pay-for-Performance policy was to limit large disparities in pay between people doing similar jobs which can be caused simply by being a long-term employee who has gotten a raise every year. Id.

  33. Throughout her career, McClam-Brown often received raises and her managers often gave her larger raises because of her technical skills. Ex. B, Work History; Ex. D, Dolan Dec. ¶ 11.

  34. In 1994, the entire V-22 group received less than average pay increases because of the serious interpersonal problems and lack of teamwork. Ex. D, Dolan Dec. ¶ 11; McClam-Brown Dep. 144-146. Only one person received a larger than average raise: Kristin Harris. Ex. D, Dolan Dec. ¶ 11. AT the time, Ms. Harris had been coordinating the group's efforts and had been proactive in seeking work and communicating with Both Dolan and with her coworkers. McClam-Brown Dep. 411; Ex. D, Dolan Dec. ¶ 11. She had also worked very hard on achieving the group's goals. Id. Ms. Harris was also toward the lower end of the pay scale. Ex. D, Dolan Dec. ¶ 11.

  35. McClam-Brown had more seniority than Harris and, therefore, was at the higher end of the pay scale. She earned about $18,000 more than Harris for the same or less work. Ex. D, Dolan Dec. ¶ 12.

  36. McClam-Brown did not regularly communicate with Dolan, and managers had sometimes complained about her negative attitude. Ex. D, Dolan Dec. ¶¶ 7, 9.

  37. Based on these facts, the salary planning computer program in 1994 recommended a smaller increase; however, Dolan felt that her technical skills deserved more recognition and decided to overrule the system and give her a 4% raise. Ex. D, Dolan Dec. ¶ 11.

  38. Dolan and Cunningham explained to McClam-Brown that in order to improve her performance she needed to communicate in person with Dolan more regularly and provide detailed written reports to both of them and to work harder. McClam-Brown Dep. 215-216, 420; Ex. D, Dolan Dec. ¶ 13.

  39. Dolan told McClam-Brown that, as he warned would happen, the entire team was penalized for their poor teamwork and this was reflected in the 1994 raises. Ex. D, Dolan Dec. ¶ 13.

  40. Dolan explained the Pay-for-Performance policy to McClam-Brown. McClam-Brown Dep. 148.

  41. Although Dolan agreed to keep his office open an extra hour every day for all employees to come and speak with him about any issue, McClam-Brown did not increase her discussions with Dolan. McClam-Brown Dep. 215-216, 219; Ex. D, Dolan Dec. ¶ 13. 42. McClam-Brown did not give her managers frequent detailed written reportsabout her work to keep them informed. McClam-Brown Dep. 215-216; ex. D, Dolan Dec. ¶ 13.

  43. McClam-Brown was a direct charge employee. McClam-Brown dep. 253.

  44. Dolan informed all of the employees including McClam-Brown that they needed to charge their time correctly. Ex. D, Dolan Dec. ¶ 14. It was Dolan's job as manager to ensure that all of the employees that he supervised correctly charged their time. Id.; McClam-Brown Dep. 252-253.

  45. If they were not working on Boeing business, employees should not charge their time to a Boeing project. Ex. D, Dolan Dec. ¶ 14. Rather, they were required to charge personal business or PERBUS." Id. This rule was particularly important for employees who like McClam-Brown were "direct charge" employees. McClam-Brown dep. 253; Ex. D, Dolan Dec. ¶ 14.

  46. As a direct charge employee, the time that McClam-Brown recorded working was directly charge to Boeing's customers, including the United States government. McClam-Brown dep. 253.

  47. Billing for work that was not done wreaked havoc on Boeing schedules and budgets. Ex. D, Dolan Dec. ¶ 14.

  48. If a direct charge employee billed time to the project that she had not actually worked, she was stealing from the United States government. McClam-brown Dep. 253-254.

  49. In September 1995 in the middle of the workday, Dolan was driving out of the parking lot at Boeing to go to another part of the plant. Ex. D, Dolan Dec. ¶ 16. The car directly in front of him was driven by McClam-Brown. Id. But, instead of going across the street, Dolan saw McClam-Brown turn and leave the Boeing plant. Id. 50. A few days later when Dolan reviewed McClam-Brown's timecard for that day, he noticed that she was charging for the time that she was away from Boeing and that she had not worked on Boeing business. Id. Dolan confronted her about the irregularity and asked her to change her timecard to reflect her actual hours. Id. at ¶ 16; McClam-Brown Dep. 249-252.

  51. When first confronted, McClam-Brown claimed that she was taking a late lunch. Ex. D, Dolan Dec. ¶ 16. Dolan reminded her that they had eaten together that day at a farewell lunch for another employee. Id. McClam-Brown then changed her story and claimed that the had tone to the bank. Id. She then admitted that she should have recorded her time differently. Id. Dolan told her to change the timecard to reflect the time that she had spent on personal business (`PERBUS"). Id.

  52. McClam-Brown understood that mischarging time was a criminal offense. McClam-Brown Dep 254. She admitted that she made a mistake, changed her timecard and Dolan signed it. Id. at 250-252; Ex. D, Dolan Dec. ¶ 16. Dolan reminded her that it was very important to accurately record her time and that she must not do this again. McClam-Brown Dep. 250-254; Ex. D, Dolan Dec. ¶ 16.

  53. Approximately three weeks later in October 1995, Dolan again saw McClam-Brown get into her car and leave the area in the middle of the workday. Ex. D, Dolan Dec. ¶ 17. A few days later when he reviewed her timecard for the day, he again discovered that she had not charged any personal time as required. Id.

  54. Dolan again confronted McClam-Brown about mischarging her time. Id. McClam Brown said that she had a meeting in another part of the plant and was on her way there when Dolan saw her. Id. Dolan listened to her explanation and then the meeting ended. Id. Dolan then contacted a manager in the area where McClam-Brown said she had her meeting. Id. The manager denied that McClam-Brown had been to his area at anytime during the day in questions. Id.

  55. McClam-Brown's story appeared to be false and it was not the first time that Dolan had caught her lying about mischarging her time. Ex. D, Dolan Dec. ¶¶ 16-18.

  56. McClam-Brown was then reported to Boeing Security. Id. at ¶ 18.

  57. The Security Department began its investigation of McClam-Brown's time charging in October 1995. Id.

  58. The Security Department observed McClam-Brown's arrival and departure from the plant and compared it to the timecards that she submitted. Declaration of Dominic Marinelli ("Marinelli Dec.") ¶ 17.

  59. Security discovered that there were more than nine days in November 1995 on which they believed that McClam-Brown had mischarged her time. Ex. G, Marinelli Dec. ¶ 17 (Security Report). Ths did not include the October incident that had lead Dolan to report McClam-Brown. Id.

  60. The last problem day that Security observed was November 14, 1995. Id.

  61. On November 14, 1995 a coworker told McClam-Brown that Security was observing her. McClam-Brown Dep. 287, 289.

  62. On November 21, 1995, two members of the Security department met with McClam-Brown to discuss their investigation. McClam-Brown Dep. 262. 63. McClam-Brown was given an opportunity to explain her absences and the misstatements on her timecard. Id.

  64. McClam-Brown admitted that she had mischarged her time on at least one day. McClam-Brown Dep. 245-246, 265; November 21, 1995 Statement of Nadine McClam-Brown ("1995 Statement"). If Security had not caught her, McClam-Brown would not have changed her timecard. McClam-Brown Dep. 266.

  65. Security sent its report to Boeing's Disciplinary Review Board ("DRB"). The DRB chairman was Dominic Marinelli, a human resources manager who has since been laid off by Boeing. Ex. G, Marinelli Dec. ¶¶ 1, 17.

  66. In December 1995, McClam-Brown met with the DRB to review again the Security report and offer any additional explanation that she wanted to share. McClam-Brown dep. 294.

  67. The DRB listened to her explanation, Dolan's testimony about his own personal observations, and reviewed the Security Report. Ex. G, Marinelli Dec. ¶ 17.

  68. After considering this evidence, the DRB decided that only six days of the nine days on which Security detected an irregularity were an appropriate basis for discipline. Ex. G, Marinelli Dec. ¶ 17 (Security Report); Corrective Action Memo dated January 2, 1996.

  69. The DRB suspended McClam-Brown for two weeks from January 5, 1996 until January 18, 1996. Ex. I, Corrective Action Memo; Ex. G, Marinelli Dec. ¶ 17.

  70. After the Security Department had begun its investigation, McClam-Brown filed a charge with the EEOC alleging that she was a victim of race discrimination. McClam-Brown Dep. 114-115; EEOC Charge of Discrimination dated November 6, 1995. McClam-Brown filed the Charge on November 6, 1995. Id. This was the first time that she had ever complained to any government agency that she believed that she was the victim of discrimination. Id. at 97.

  71. The earliest date on which she alleges that any discriminatory action was taken against her was December 28, 1994, the date her 1994 raise (to be implemented in 1995) was discussed. Id. at 136.

  72. McClam-Brown did not tell Dolan, Cunningham or anyone in Boeing HR or the Boeing EEO office that she had filed her November 6, 1995 charge. Id. at 293.

  73. The EEOC did not serve McClam-Brown's Charge on Boeing until December 1995, after the Security Department's investigation was complete. McClam-Brown Dep. 292; Ex. J, November 6, 1995 EEOC Charge.

  74. None of McClam-Brown's managers or Boeing's EEO or HR offices were aware of her EEOC charge until December 14, 1995 when she told the DRB about the charge. McClam-Brown dep. 293-294.

  75. In early 1996, after Dolan's transfer to another position, Cunningham appointed Ken Dabundo as the acting manager until Boeing could conduct a formal selection process. McClam-Brown Dep. 111, 344, 347; Ex. E, Dabundo Dec. ¶ 5.

  76. After Dolan's transfer, Boeing had to select a replacement to be manager of the Composites Group. Declaration of Thomas Caramanico ("Caramanico dec.") ¶ 3. Boeing invited interested employees to apply for the manager's position through the first level management selection process ("FLMSP"). McClam-Brown Dep. 110; Ex. K, Caramanico Dec. ¶ 3.

  77. The FLMSP consists of several written exercises, interviews and objective tests. Ex. K, Caramanico Dec. ¶ 2; Ex. E, Dabundo Dec. ¶ 6. 78. A group of managers including Roy Cunningham and Thomas Caramanico were responsible for selecting the successful candidate. Ex. K, Caramanico Dec. ¶¶ 3-5.

  79. The managers selected Ken Dabundo as the best candidate and the new manager based on his qualifications, experience and the fact Cunningham was familiar with Dabundo, who was already doing the job quite well. McClam-brown Dep. 110, 334, 379; Ex. K, Caramanico Dec. ¶¶ 4, 5.

  80. Dabundo had done a good job as both lead for many years and as acting manager for about a year. Ex. K, Caramanico Dec. ¶ 5; ex. D, Dolan Dec. ¶ 20.

  81. Dabundo always kept Cunningham and Dolan informed about his activities and the group's status and the managers knew his work well. McClam-Brown Dep. 379; Ex. E. Dabundo Dec. ¶ 2.; D, Dolan Dec. ¶ 20.

  82. Dabundo never had any disciplinary problems. Ex. D, Dolan Dec. ¶ 20; Ex. E, Dabundo Dec. ¶ 1.

  83. Dabundo had repeatedly demonstrated that he was willing to work as long as necessary to get the job done. He worked hard. Ex. D, Dolan Dec. ¶ 20.

  84. Dabundo had an advanced degree that McClam-Brown lacked and had been working the group all of his career and nearly ten years longer than McClam-Brown and was very familiar with it. Ex. E, Dabundo Dec. ¶ 1; ex. K, Caramanico Dec. ¶ 5.

  85. Like Dolan, Dabundo did not name a lead for McClam-Brown's area. McClam-Brown Dep. 343; Ex. E, Dabundo Dec. ¶ 8. The group had worked well for months without someone in that role while he was acting supervisor and there was no reason for him to name a lead after he was promoted to supervisor. Id. 86. McClam-Brown announced to Cunningham that she "[did] not plan nor should he expect [her] to prove [her]self to Ken [Dabundo]."

  87. Cunningham again advised McClam-Brown that she should try to improve her communications with him and her managers and that Dabundo was selected because Cunningham knew his qualifications better and that he had been doing a good job. Id.

  88. McClam-Brown never did anything to improve her communications with Cunningham. McClam-Brown Dep. 380-381.

  89. Dabundo told McClam-Brown that she needed to keep him informed about her work through e-mail and detailed activity reports. McClam-Brown Dep. 417-418, 420; Ex. E, Dabundo Dec. ¶ 9. Activity reports include information about significant work projects and allow managers to better understand the group's workload and to manage them more effectively. McClam-Brown Dep. 417-418; Ex. D, Dolan Dec. ¶ 7; Ex. E, Dabundo Dec. ¶ 9.

  90. McClam-Brown never contributed to the activity reports to give Dabundo any information about her work. Id.; Ex. E, Dabundo Dec. ¶ 9.

  91. McClam-Brown did not feel a need to obey her managers or take their suggestions. McClam-Brown Dep. 419.

  92. Dolan, Dabundo and Cunningham advised McClam-Brown to be proactive and take the initiative but nothing changed. Ex. D, Dolan Dec. ¶ 5; Ex. E, Dabundo Dec. ¶ 8.

  93. Dabundo suggested that she use training videos available at Boeing. McClam-Brown Dep. 421. McClam-Brown had no interest in additional training. Id.

  94. Plaintiff has not come forth with evidence of race discrimination or retaliation. 95. Plaintiff offers no explanation for the contradiction between her sworn testimony on deposition and the belated declaration. Martin v. Merrell Dow Phar. Inc., 851 F.2d 703, 706 (3d Cir. 1988).

  96. Plaintiff has not produced any evidence which either casts sufficient doubt on the defendant's legitimate non-discriminatory reasons for taking any adverse employment actions against her or which would allow a fact-finder to infer that discrimination was more likely than not a determining factor. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). JUDGMENT

  AND NOW, this day of July, 2004, judgment is entered in FAVOR of defendant and AGAINST plaintiff Nadine McClam-Brown. ORDER

  AND NOW, this ____ day of July, 2004, upon consideration of Defendant's Motion for Summary Judgment Against Ronald Clarke, the response thereto and after a hearing, it is hereby ORDERED that said Motion is GRANTED based on the following facts as to which there is no genuine dispute:

  1. The Boeing Company designs and manufactures aerospace products.

  2. Ronald Clarke ("Clarke") began working at Boeing in August 1985 as an artist/illustrator. Deposition of Ronald Clarke ("Clarke Dep.") 175-1979; Work History; July 24, 1985 Job Offer.

   3. Clarke remained in the position of artist/illustrator during the entire time that he worked at Boeing. Clarke Dep. 176-177; Ex. C, Work History.

   4. Clarke's essential job duties did not change during the entire time that he worked at Boeing, but the way in which he completed the work did change. Clarke Dep. 177, 88-89. In 1985, when Clarke began, all of the illustration was completed manually at a board. Clarke Dep. 88. However, over time Boeing began to use computers to help create drawings because the company believed that they are quicker and more efficient than the use of a board. Clarke Dep. 88-89, 95-98.

   5. Clarke needed to be able to proficiently use four computer programs in order to do his job. Autotrol, CATIA, FlyThru and Intercap. By Clarke's estimate, his work required him to use a computer to complete nearly every project by 1994. Declaration of Barry Wolff ("Wolff Dec.") Dec. ¶ 3; Clarke Dep. 88-89, 237, 257, 312-315.

   6. Boeing provided Clarke and the other artists with formal and informal training on Autotrol, CATIA, FlyThru and Intercap. Clarke Dep. 215-216, 226-227, 237; Ex. D, Wolff Dec. ¶ 4.

   7. In December 1995, Clarke was among a small group of employees selected to receive training on Intercap at a Maryland facility. Clarke Dep. 98-99, 256.

   8. Because of budgetary considerations, intensive training like the Maryland program that Clarke attended was rare and one-on-one training was not possible. Clarke Dep. 205, 286-287, 312-315; Ex. D, Wolff Dec. ¶ 4.

   9. Clarke's managers allowed him and other employees to spend long periods of time on the system to become familiar with it and Boeing offered tutorials at Ridley Park to help the artists become more proficient with the programs. Clarke Dep. 204, 312-315; Ex. D, Wolff Dec. ¶ 4.

   10. Boeing did what it could to help Clarke increase his efficiency and productivity on the computer. Clarke Dep. 205, 243-245.

   11. Clarke was not comfortable using the computer system seated because he had worked most of his career standing at a board doing drawings by hand Clarke Dep. 243-245. Clarke asked for a special work station. Clarke Dep. 175-176, 243-245; Ex. D, Wolff Dec. ¶ 7. His manager arranged for Boeing to build a foam riser for Clarke's keyboard and monitor so that he could work standing up. Id.

   12. No matter what Boeing did to accommodate Clarke it was not enough; his performance did not improve. Ex. D, Wolff Dec. ¶ 8. Although he received some strong performance ratings, one supervisor still considered him to be a lackluster employee. Id.

   13. From 1994 through 1997, Clarke's managers began informing Clarke that he needed to improve his efficiency on computer-generated graphics. Clarke Dep. 251, 253, 267; Ex. D, Wolff Dec. ¶ 8; Annual Evaluations.

   14. Clarke's supervisors noted that he was "somewhat slow in producing electronic art" and regularly needed to work on improving his proficiency. Clarke Dep. 251, 253, 267; Wolff Dec. ¶ 8; Annual Evaluations. One supervisor explained to Clarke that he must "significantly improve" his proficiency on the computer system in order to reduce costs because "we will not stay in business even with a perfect product if it is a perfect product that no customer can afford." Clarke Dep. 253-254; Ex. H. September 24, 1994 Evaluation by Rich Neil.

   15. Clarke sometimes refused to use the computer to complete projects. Clarke Dep. 93-94. In one instance, Clarke refused to use the computer to complete a rush job, telling his manager that if he made him use the computer "It might be three months or three years" before he completed the assignment. Clarke Dep. 93-94. After Clarke informed him of the potential for delay, the manager allowed Clarke to work on the board. Clarke Dep. 93-94.

   16. Clarke's performance was so inefficient, according to one of his managers, that it became uneconomical to use him to complete illustrations. Declaration of Martin Anderson ("Anderson Dec.") ¶ 4. 17. In one instance, Clarke completed a single project that, based on his regular billing rate, cost Boeing's client more than $10,000. Independent contractors have completed similar assignments for Boeing for less than $500. Ex. F, Anderson Dec. ¶ 4. The manager who assigned the project, Martin Anderson, complained to Clarke's manager, Barry Wolff, when the project took too much time and cost too much to complete. Clarke Dep. 93-94, 259, 263-264; Ex. F, Anderson Dec. ¶ 5; Ex. D, Wolff Dec. ¶ 10.

   18. Anderson decided that he would no longer refer work to Clarke's department because compared to Clarke, using his own employees who were not artists or an outside contractor would be significantly cheaper. Clarke Dep. 263-264; Ex. F, Anderson dec. ¶ 5; Ex. D, Wolff Dec. ¶ 10. As a result of Clarke's poor performance, among other things, Clarke and his group lost all of the training work. Clarke Dep. 263-264; Ex. D, Wolff Dec. ¶ 12; Ex. F, Anderson Dec. ¶ 5.

   19. Wolff warned Clarke that he must increase his efficiency or they would lose even more work and that if he did not improve, he would be jeopardizing the future of the group. Ex. D, Wolff Dec. ¶ 11.

   20. Boeing needed illustrators, proficient in using the required computer systems in 1997/early January 1998 and so Wolff made job offers to two artists who had worked as contractors for Boeing. Ex. D, Wolff Dec. ¶ 14.

   21. The contractors were extremely skilled at using the computer systems to create graphics and that they improved the group's performance. Ex. D, Wolff dec. ¶ 15. The new employees could complete four or five times as much work as Clarke. Ex. D, Wolff Dec. ¶ 16.

   22. In 1998, Boeing needed to dramatically cut costs, and the managers had to figure out how to do so and still maintain a high quality product. Ex. D, Wolff Dec. ¶ 13. 23. Many people, including Clarke, had heard rumors that the entire Ridley Park facility was going to close. Clarke Dep. 371-372.

   24. At the beginning of each year, human resources officials together with the line managers place employees performing similar work on retention totems based on skill and efficiency as well as quantity and quality of work. Declaration of Kimpton Hemsarth (Hemsarth Dec.") ¶ 5; Ex. D, Wolff Dec. ¶ 9. Boeing would use the retention totem, if later in the year, there was a reduction in force. Id.

   25. Under the retention totems employees were assigned numbers: the lowest ranked employees were given a three and the highest ranked employees received a one. Ex. A, Hemsarth Dec. ¶ 5; Ex. D, Wolff Dec. ¶ 9; Clarke Dep. 136.

   26. At the time, an employee's years of service at Boeing did not play any role in assigning a retention rating unless the employee had more than twenty years of service at Boeing. Clarke Dep. 289; Deposition of Darla Johnson ("Johnson Dep.") 95; Ex. A, Hemsarth Dec. ¶ 5; Ex. D, Wolff Dec. ¶ 9.

   27. Kim Hemsarth was the head of the group of managers that evaluated and ranked Clarke in 1998. Ex. A, Hemsarth Dec. ¶ 6; Ex. D, Wolff Dec. ¶ 17.

   28. The managers unanimously decided that because of his poor performance, Clarke should be assigned a retention rating of three, the lowest possible rating. Ex. A, Hemsarth Dec. ¶ 6; Ex. D, Wolff Dec. ¶ 17. Clarke simply had not mastered the computer technology and, thus, his productivity was less than that of his peers, he was not improving, and he was reducing his team's overall productivity. Ex. D, Wolff Dec. ¶¶ 3, 8; Ex. A, Hemsarth Dec. ¶ 6. 29. When Wolff was told that his group was overstaffed and that he had to layoff an employee, Wolff selected Clarke based on his performance, reports by other people familiar with his performance and his retention rating. Ex. D, Wolff Dec. ¶ 18.

   30. Wolff did not select two newer employees selected for layoff because he believed that they were both more efficient than Clarke, and in fact, that they were the two best employees in the group. Ex. D, Wolff Dec. ¶¶ 16, 19.

   31. Clarke received his layoff notice on May 15, 1998. Layoff Notice dated May 15, 1998.

   32. Clarke's last day of work at Boeing was May 2, 1998. Ex. C, Work History.

   33. Boeing offered employees who were laid off a choice of severance benefits. Employees could choose either a weekly payment or a lump sum. Layoff Benefit Election Form.

   34. If employees who were laid off selected the weekly payment, they would remain on Boeing's recall list and if an appropriate job became available, they could return. The lump sum plan offered a larger amount of money up front but did not give the employee recall rights. Clarke Dep. 371.

   35. Clarke gave up his right to be recalled if a job became available and chose to receive a lump sum severance benefit. Clarke Dep. 371-372; Ex. L, Layoff Benefit Election Form.

   36. The severance benefit totaled approximately $22,000 (about half of Clarke's annual salary). Clarke Dep. 389.

   37. As a result of his layoff, Clark decided to retire. Clarke Dep. 394.

   38. Clarke currently receives full retirement benefits from Boeing including a monthly payment and health care coverage. Id. at 395. 39. Clarke filed a charge with the EEOC on August 3, 1998. EEOC Charge of Discrimination; EEOC Allegations of Employment Discrimination Form.

   40. Clarke was a marginal employee laid off as a cost-cutting business decision.

   41. There is no evidence to rebut Defendant's legitimate reasons for its actions. The Title VII claims are barred. There is no evidence of mixed motive. JUDGMENT

   AND NOW, this day of July, 2004, judgment is entered in FAVOR of defendant and AGAINST plaintiff Ronald Clarke. ORDER

   AND NOW, this ____ day of July, 2004, upon consideration of Defendant's Motion for Summary Judgment Against Larry McIntosh, the response thereto, and after a hearing, it is hereby ORDERED that said Motion is GRANTED based on the following facts as to which there is no genuine dispute:

   1. The Boeing Company designs and manufactures aerospace products.

   2. The Boeing Company operates a facility in Ridley Park near Philadelphia, Pennsylvania. Deposition of Larry McIntosh ("McIntosh Dep.") 33.

   3. On January 3, 1979, Larry McIntosh began work as a Senior International marketing Analyst in Boeing's Ridley Park, Pennsylvania facility. McIntosh Dep. 24.

   4. In June 1980, McIntosh applied for, and was offered, an engineering test pilot position. McIntosh Dep. 31; Complaint ¶ 59.

   5. McIntosh's supervisors were reluctant to let him leave his Marketing Analyst position because he had performed well. McIntosh Dep. 32. 6. McIntosh's supervisors offered him a raise and a promotion to remain in his analyst position. McIntosh Dep. 32.

   7. McIntosh declined the offer and began work as a test pilot position on July 7, 1980. McIntosh Dep. 32, 31, 32.

   8. In 1981, McIntosh was reassigned as a project engineer for the CH46 Program. McIntosh Dep. 34-35; Complaint ¶ 60.

   9. On or about April 25, 1983, McIntosh was moved to the Training Equipment Group of the Publication and Training Organization. McIntosh Dep. 49, 54; Work History of Larry McIntosh.

   10. In the Training Equipment Group of the Publication and Training Organization, McIntosh designed training devices, including flight simulators. McIntosh Dep. 49, 54.

   11. McIntosh spent more than three years in the position and received a salary increase every year. Ex. B, Work History of Larry McIntosh.

   12. McIntosh was reassigned to the Customer Training Group on or about August 25, 1986. Ex. B, Work History of Larry McIntosh.

   13. While a member of the Customer Training Group, McIntosh received a salary increase and was selected by the members of his group as their Quality Circles leader, a responsibility which included making presentations to Boeing senior management. McIntosh Dep. 79; Ex. B, Work History of Larry McIntosh.

   14. In March 1987, Boeing gave McIntosh another raise and promoted him to the position of Integrated Logistics Support Manager for the MH47E Program. McIntosh Dep. 82-83. 15. The MH47E Program was a new program at Boeing responsible for developing advance helicopters for use by Untied States Special Operations Forces. McIntosh Dep. 82-83.

   16. The Director of Product Support, Ken Hancock, and Bill Jones, Senior Vice President of Boeing Helicopters, selected McIntosh for the Logistics Support Manager position. McIntosh Dep. 78.

   17. In the summer of 1992, Boeing chose McIntosh to represent the company as a "Loaned Executive" of the United Way. McIntosh Dep. 120. As part of this program, McIntosh spent several days a week at a United Way office assisting with fund raising activities and developing this management skills. McIntosh Dep. 125-126.

   18. In March 1994, McIntosh was transferred to the Aircrew Training and Publications Group ("Aircrew Publications Group"). McIntosh Dep. 180 Ex. B, Work History of Larry McIntosh.

   19. In the Aircrew Publications Group, McIntosh worked as a technical writer with the formal job title of Technical Publications Specialist 2. McIntosh Dep. 180-81; Declaration of Richard Neil ("Neil Dec.") ¶ 2.

   20. As a technical writer, McIntosh wrote manuals for use by pilots and flight engineers. McIntosh Dep. 186-87; Ex. D, Neil Dec. ¶ 2

   21. McIntosh was supervised byseveral managers in the Aircrew Publications Group. McIntosh Dep. 181-82. About one year after he joined the group, Richard Neil was McIntosh's immediate, or first level supervisor. Ex. D, Neil Dec. ¶ 2; Declaration of Michael Farren ("Farren Dec.") ¶ 1. Neil in turn reported to Michael Farren, who was McIntosh's second level manager. Ex. C, Farren Dec. ¶ 1; Ex. D, Neil Dec. ¶ 2. 22. In late 1995, members of the Customer Training Group, including McIntosh, were informed of the need for a training focal in the 609 Program. Ex. C, Farren Dec. ¶ 3; Ex. D, Neil Dec. ¶ 3.

   23. The 609 Program was a new program at Boeing responsible for developing a civilian tilt rotor aircraft. Ex. C, Farren Dec. ¶ 3; Ex. D, Neil Dec. ¶ 3; McIntosh Dep. 355-56.

   24. Interested employees were encouraged to speak to their managers about the position. Ex. C, Farren Dec. ¶ 3; Ex. D, Neil Dec. ¶ 3.

   25. McIntosh told Neil and Farren that he was interested in the 609 Program position. Ex. D, Farren Dec. ¶ 3; Ex. D, Neil Dec. ¶ 4.

   26. Based on McIntosh's excellent performance, Farren and Neil decided that he was the best candidate for the focal position. Ex. C, Farren Dec. ¶ 3; Ex. D, Neil Dec. ¶ 4; McIntosh Dep. 307.

   27. McIntosh began work on the 609 Program in early 1996, under the supervision of Nancy Kunkle, the Supportability Manger of the program. Ex. C, Farren Dec. ¶ 3; Ex. D, Neil Dec. ¶ 4; McIntosh Dep. 355, 360.

   28. McIntosh worked in the 609 Program only part-time. Ex. C, Farren Dec. ¶ 3; Ex. D, Neil Dec. ¶ 4; McIntosh Dep. 359. McIntosh's duties in the 609 Program included handling technical publications for the program and training responsibilities. McIntosh Dep. 358-359. The remainder of the time, McIntosh continued to work in his Aircrew Publications assignment. Ex. C, Farren Dec. ¶ 3; Ex. D, Neil Dec. ¶ 4; McIntosh Dep. 357, 359. 29. Frank D'Agosta was one of McIntosh's coworkers in the 609 Program. McIntosh Dep. 362. D'Agosta is a law school graduate and a very bright individual. McIntosh Dep. 566.

   30. McIntosh asked Neil to move him off of the 609 Program and transfer him back to full time work in the Aircrew Publications Group. Ex. D, Neil Dec. ¶ 5; McIntosh Dep. 361-362.

   31. Neil felt that he needed McIntosh back in the Aircrew Publications Group fulltime because business picked up and the group needed McIntosh to complete all of its work. Ex. D, Neil Dec. ¶ 6.

   32. McIntosh returned to the Aircrew Publications Group and completed various assignments per Neil's request. Ex. D, Neil Dec. ¶ 6.

   33. At about the same time, Farren and Neil received notice of new work, which needed to be completed for the Royal Air Force, known as the "RAF Program." Ex. C, Farren Dec. ¶ 4; Ex. D, Neil Dec. ¶ 7; McIntosh Dep. 427.

   34. Farren and Neil decided based on his qualifications that McIntosh would be the best person to handle the new program and that McIntosh should not return to part-time work on the 609 Program, but instead should work on the RAF Program in the Aircrew Publications Group fulltime. Ex. C, Farren Dec. ¶¶ 5-6; Ex. D, Neil Dec. ¶ 7.

   35. McIntosh was already familiar with the unique style of RAF manuals and understood the client's needs. Ex. C, Farren Dec. ¶ 5; Ex. D, Neil Dec. ¶ 7.

   36. McIntosh understood how to work on new or ongoing programs. Ex. C, Farren Dec. ¶ 5; Ex. D, Neil Dec. ¶ 7. 37. The 609 Program was sufficiently advanced that other employees could cover the publication needs in that area. Ex. C, Farren Dec. ¶ 5; Ex D, Neil Dec. ¶ 7. John Abreu, an Hispanic manager, was able to continue any remaining work after McIntosh was assigned to the RAF program. Ex. C, Farren Dec. ¶ 6; Ex. D, Neil Dec. ¶ 7.

   38. D'Agosta had already assumed the publications-side of McIntosh's 609 work and McIntosh's training tasks — at least those tasks required in the program's preliminary phase — had largely been accomplished. Ex. C, Farren Dec. ¶ 6; Ex. D, Neil Dec. ¶ 7; McIntosh Dep. 379.

   39. McIntosh received an excellent evaluation and a promotion and pay increase for his performance on the RAF Program. Ex. D, Neil Dec. ¶ 8; McIntosh Dep. 299-300, 390.

   40. In March 1997, the Aircrew Publications Group consisted of Jose Rivera, whose job title was a Technical Publications Specialist 3 and McIntosh, Daniel Duran and Walter Gutsche, all Technical Publications Specialist 2's. Ex. D, Neil Dec. ¶ 9.

   41. In March 1997, Neil held a meeting of the Aircrew Publications Group, explained that Rivera, the lead for the group was moving to another department and that there would be an opening which would be posted for all Boeing employees. Ex. D, Neil Dec. ¶ 9; McIntosh Dep. 242, 244-245, 259; March 24, 1997 Job Opportunity Bulletin. Neil encouraged any interested member of the group, including McIntosh, to apply for the job. Ex. D, Neil Dec. ¶ 11; McIntosh Dep. 245-46. Neil decided to post the job throughout Boeing to ensure that all Boeing employees had a fair chance to apply and be considered. Ex. D, Neil Dec. ¶ 11.

   42. "Lead" is an informal designation used in some groups to denote the most technically experienced employee. Ex. C, Farren Dec. ¶ 7; Ex. D, Neil Dec. ¶ 10. The lead is not a manager but rather a coordinator and resource for other employees. Ex. C, Farren Dec. ¶ 7; Ex. D. Neil Dec. ¶ 10. A lead position does not necessarily involve either a promotion or a salary increase. Ex. C, Farren Dec. ¶ 7; Ex. D, Neil Dec. ¶ 10.

   43. As lead of the Aircrew Publications Group, Rivera edited and reviewed the work of the group's members. Ex. C, Farren Dec. ¶¶ 7-8; Ex. D, Neil Dec. ¶ 9; McIntosh Dep. 192.

   44. Because Rivera was classified as Technical Publications Specialist 3, and the other three members of the group, including McIntosh, were Technical Publications Specialist 2's, the lead selection could also involve a promotion and people may have assumed that the "lead" title in this case would go with the job. Ex. D, Neil Dec. ¶¶ 9-10.

   45. The job opening, dated March 24, 1997, was posted. March 24, 1997 Job Opportunity Bulletin. No one applied for the job. Ex. D, Neil Dec. ¶ 12; McIntosh Dep. 246, 250-251.

   46. McIntosh did not apply for the position, nor did he express any interest in the position to Neil or Farren before he left for vacation on March 28, 1997. Ex. D, Neil Dec. ¶ 12; McIntosh Dep. 246, 250-51.

   47. When no one responded to the first requisition, Neil issued a second requisition for the lead job, which expired April 15, 1997. Ex. D, Neil Dec. ¶ 12; April 3, 1997 Job Opportunity Bulletin.

   48. After McIntosh returned from vacation, Neil approached him to discuss the position, and McIntosh stated that he might apply. Neil Dec. at ¶ 13. After the meeting, McIntosh put in a request for transfer, which was necessary in order to apply for the lead position.

   49. The Aircrew Publications Group discussed the option of operating without a lead on several occasions. Ex. D, Farren Dec. ¶ 9; Ex. D, Neil Dec. ¶ 15. 50. Around this time, Farren decided that the group should simply work without a lead. Ex. C, Farren Dec. ¶ 8; Ex. D, Neil Dec. ¶ 14. At the time he was informed of Farren's decision, Neil was not aware that McIntosh had responded to the lead requisition. Ex. D, Neil Dec. ¶ 14. Farren based his decision to operate without a lead on several factors. Ex. C, Farren Dec. ¶ 8. In light of the group's extensive work requirements, Farren determined that it was more important to have four members of the group dedicated to writing duties, rather than to have a lead, who would spend only part of his or her time on writing duties, dedicating the rest to administrative tasks. Ex. C, Farren Dec. ¶ 8. He believed that working without a Technical Specialist 3 would save the group money and that to make McIntosh, or any other individual lead, while have a staff of four writers, would require the hiring of two new writers; however, budgetary constraints made this option unworkable. Ex. C, Farren Dec. ¶ 8.

   51. Farren also felt that since the group was so small and the employees equally matched, it would be easy fro Neil and the technical writers to assume some of the additional responsibilities. Ex. C, Farren Dec. ¶ 8; Ex. D, Neil Dec. ¶ 15.

   52. In accordance with Farren's decision, Neil cancelled the requisition for a Technical Publications Specialist 3 and issued a new requisition for a Technical Publications Specialist 2. Ex. C, Farren Dec. ¶ 10; Ex. D, Neil Dec. ¶ 16, 53. Neil hired Joseph Rogish for the Technical Publications Specialist 2 position. Ex. D, Neil Dec. ¶ 16; McIntosh Dep. 411.

   54. In December 1999, McIntosh announced that he was resigning, in part because he needed to address family issues unrelated to Boeing. McIntosh Dep. 282. Because Boeing was reluctant to lose a good employee, Dawn Deibler, a Boeing human resources representative, suggest that McIntosh convert his resignation into a leave of absence. McIntosh Dep. 283. McIntosh followed Ms. Deibler's recommendation and took a leave of absence. McIntosh Dep. 283.

   55. McIntosh never returned from his leave of absence and in May 199, McIntosh resigned from Boeing and loved permanently to Trinidad to live with his family. Updated Work History of Larry McIntosh; Plaintiff Larry McIntosh's Supplemental Answers to Defendant's Interrogatories at 2; McIntosh Dep. 575-76.

   56. McIntosh filed his first and only charge with the EEOC charge on June 10, 1997 and filed his Complaint with this court on July 31, 1998. Complaint ¶ 68; June 10, 1997 EEOC Charge.

   57. In 1997, McIntosh was retention rating 1, meaning that he, along with other employees with a 1 retention-rating, would be the last to be laid off in the event of a reduction-in-force. Ex. B, Work History of Larry McIntosh.

   58. In April 1998, McIntosh received a promotion to Technical Specialist 3, which was accompanied by a $5,000 pay increase. McIntosh Dep. 304; Ex. B, Work History of Larry McIntosh.

   59. Boeing has a Pay-for-Performance policy. Ex. D, Neil Dec. ¶ 17; Ex. C, Farren dEc. ¶ 11. While Boeing rewards employees who demonstrate technical excellence, enthusiasm, and teamwork, the Pay-for-Performance policy also dictates that employees who do perform similar jobs, should receive commensurate pay. Ex. D, Neil Dec. ¶ 17; Ex. C, Farren Dec. ¶ 11. To achieve these goals, managers group employees with similar jobs on a totem. Managers then rank those employees listed on a particular totem based on the employee's performance and the employee's current salary as compared to the target salary for the position. Ex. D, Neil Dec. ¶ 17.; Ex. C, Farren Dec. ¶ 11; McClam-Brown Dep. 134-136. This process eliminates large disparities in pay between people doing similar jobs, which may arise with long-term employees who are awarded yearly salary increases. Ex. D, Neil Dec. ¶ 17; Ex. C, Farren dec. ¶ 11.

   60. The raking is then combined with the available budget and a salary planning computer program determines the appropriate raise. Ex. D, Neil Dec. ¶ 17; Ex. L, McClam-Brown Dep. 142.

   61. When he worked in the Aircrew Publications Group, McIntosh received regular salary increases. Ex. D, Neil Dec. ¶ 18; Ex. C, Farren dEc. ¶ 11.

   62. When he worked in the Aircrew Publications Group, McIntosh earned more than most of his peers. Ex. C, Farren Dec. ¶ 11.

   63. McIntosh has not identified any white employee who performed "at a standard similar to [his]" who got a large merit raise. McIntosh Dep. 328, 330-31, 336, 338-39.

   64. McIntosh cannot identify any white employee who, like McIntosh, was approaching the top of his or her salary range who got a larger merit increase. McIntosh Dep. 328.

   65. No Boeing employee has ever made a racial slur in McIntosh's presence. McIntosh Dep. 514-16.

   66. Other than a single e-mail message with the subject line "Ebonics" that McIntosh found laying next to a printer, McIntosh has seen no other racially offensive document during his employment at Boeing. McIntosh Dep. 343, 514-16. McIntosh never brought the e-mail to the attention of any of his managers, nor did he complain to Boeing's EEO office or any human resources personnel. McIntosh Dep. 348. 67. McIntosh never reported any incidents of racial harassment of any kind to Neil or Farren. Ex. C, Farren dec. 12; Ex. D, Neil Dec. ¶ 19.

   68. There is no evidence to support the hostile work environment claim or that Plaintiff was paid less than similarly situated white employees. The Title VII claim is also untimely. Plaintiff does not overcome Defendant's legitimate, nondiscriminatory reasons for its actions. JUDGMENT

   AND NOW, this ____ day of July, 2004, judgment is entered in FAVOR of defendant and AGAINST plaintiff Larry McIntosh. ORDER

   AND NOW, this ____ day of July, 2004, upon consideration of Defendant's Motion for Summary Judgment Against Constance Perry-Rose, the response thereto, and after a hearing, it is hereby ORDERED that said Motion is GRANTED based on the following facts as to which there is no genuine dispute:

   1. Constance Perry-Rose has worked as an engineer/tool designer for Boeing at its Ridley Park, Pennsylvania facility since 1993. Deposition of Constance Perry-Rose ("Perry-Rose Dep.") 74, 107; Work History.

   2. Perry-Rose applied for a job at Boeing on July 12, 1993. Perry Rose Dep. 56; Job Application dated July 12, 1993 and Skills Sheets.

   3. On her 1993 application, Perry-Rose claimed that she had one to two years of experience working with CATIA and had recently been doing CATIA work. Id.

   4. Perry-Rose's resume that she submitted to Boeing represented that she was "certified" for CATIA. Perry-Rose Dep. 60; Resume. 5. The Boeing employeewho interviewed Perry-Rose told her that the company was looking for people who were skilled in CATIA. Perry-Rose Dep. 65-66.

   6. Boeing interviewed Perry-Rose and she again affirmed that she had been trained in CATIA. Id.

   7. Based on her job application, resume and interview, Boeing hired her for the job. Declaration of Ken Eland ("Eland Dec.") ¶ 2, ¶ 3.

   8. Perry-Rose had several managers at Boeing, including Ken Eland, Bob Haigh and Carmen Perseo. Declaration of Carmen Perseo ("Perseo Dec.") ¶ 2; Perry-Rose Dep. 75-76; Ex. D., Eland Dec. ¶ 2.

   9. When she first started working at Boeing, Perry-Rose was assigned to the V-22 program under Mr. Eland and Mr. Haigh's supervision. Perry-Rose Dep. 74; Ex. D, Eland Dec. ¶ 2. The V-22 program was extremely demanding and Boeing needed highly skilled workers for the program. Ex. D, Eland Dec. ¶ 2.

   10. Because of her purported significant CATIA experience, Perry-Rose was assigned to work on the V-22. Id.

   11. In addition to the managers, there was a lead engineer, Nunzio Bolognese, that worked in the area. Ex. C, Perseo dec. ¶ 4; Perry-Rose Dep. 75. The lead engineer was generally the most technically proficient and helped to coordinate work and assist the other employees. Ex. C, Perseo dec. ¶ 4; Ex. D, Eland Dec. ¶ 4.

   12. "Lead" is not a formal position, but instead in an informal way that co-workers refer to an employee who has excelled as a leader and who helps coordinate the teams' efforts. Ex. C, Perseo Dec. ¶ 5; Ex. D, Eland Dec. ¶ 5. There is no change in salary associated with being a lead. Id. 13. All tool designers were expected to be proficient in CATIA to perform their job. Ex. C, Perseo Dec. ¶ 3; Ex. D, Eland Dec. ¶ 3.

   14. When she was hired, Perry-Rose knew virtually nothing about CATIA and struggled to perform the tasks that were assigned to her. Ex. D, Eland Dec. ¶ 7.

   15. In November 1993, Boeing sent Perry-Rose for forty hours of basic CATIA training. Perry-Rose Dep. 108; Ex B, Work History. But, her performance remained poor. Ex D., Eland Dec. ¶ 8.

   16. In February 1994, Boeing sent Perry-Rose for over a hundred hours of CATIA instruction. Id.; Perry-Rose Dep. 108; Ex. B, Work History.

   17. Even with the additional training, Perry-Rose was still not able to complete assignments in a timely or accurate fashion. Ex. D, Eland Dec. ¶ 8; Ex C., Perseo Dec. ¶ 15. Perry-Rose frequently required significant assistance from the lead or other employees to make it through her work. Id. She also regularly caused cost and schedule overruns. Ex. D, Eland dec. ¶ 9.

   18. Eland told Perry-Rose that she needed to improve her performance and in particular her computer skills. Id. ¶ 10.

   19. The V-22 program was under sever financial pressures and Boeing could not afford to have Perry-Rose and her inefficiency ruin the budget. Ex. D, Eland Dec. ¶ 11.

   20. Boeing decided to find a place for Perry-Rose where Boeing could provide more support and coaching. Ex. D, Eland Dec. ¶ 11; Ex. C, Perseo Dec. ¶¶ 16, 29.

   21. Perry-Rose was told that she was being moved because her CATIA skills were not up to par. Perry-Rose dep. 84-85. Eland also told her that because of the demanding nature of the V-22 program he needed people who could do CATIA work and do it efficiently. Perry-Rose Dep. 89-90.

   22. On July 25, 1994, Perry-Rose transferred to the tooling department. Perry-Rose Dep. 94. She retained the same tile, salary and benefits. Ex. B, Work History; Ex. D, Eland Dec. ¶ 11.

   23. Perry-Rose was "content" with the work she performed in the tooling department assignment, and she saw it as a plus that she had more time to work on CATIA. Perry-Rose Dep. 96.

   24. The move was designed to help Perry-Rose to develop job skills that she so desperately needed. Ex. D, Eland Dec. ¶ 11; Ex. C, Perseo Dec. ¶ 12.

   25. In her new location Perry-Rose had people available to her to answer her questions about how to better use CATIA. Perry-Rose Dep. 102-03.

   26. Perry-Rose seemed to find the tooling assignment easier and took advantage of the additional support "as much as [she] could." Id.

   27. Perseo told her that she needed to be more aggressive about costs and schedules and needed to continue to develop her CATIA skills in order to be able to contribute. Ex. C, Perseo dec. ¶ 17; Perry-Rose Dep. 137; 1994 Performance Evaluation.

   28. Tool design assignments along with a time estimate are provided with each assignment. Ex. C, Perseo Dec. ¶ 13. The time estimates are based on the average time it took to complete similar designs. Id. Perry-Rose still occasionally exceeded the time estimates by a large amount. Id.; Perry-Rose Dep. 385.

   29. Perry-Rose never completed a CATIA assignment. Perry Rose Dep. 338. 30. Boeing gave Perry-Rose an additional 25 hours of CATIA training in May 1995. Perry-Rose Dep. 109-110.

   31. Pereso assigned a lead engineer to work with Perry-Rose on a one-to-one basis. Ex. C, Perseo Dec. ¶ 16; Perry-Rose Dep. 171. This was done to better understand Perry-Rose's abilities so that Boeing could use her skills more effectively. Id.

   32. In 1995, Perry-Rose could not do CATIA work proficiently. See 1995 Evaluation; Ex. C., Perseo Dec. ¶ 16.

   33. Perseo always gave Perry-Rose assignments appropriate for an engineer. Ex. C, Perseo dec. ¶ 29. He gave her some CATIA work, but he also gave her non-CATIA design assignments so that Perry-Rose would get more work done. Id.

   34. Perseo often gave Perry-Rose "board work." Perry-Rose Dep. 174; Ex. C, Perseo Dec. ¶ 29. This was design work that did not require the use of a computer and was better suited to Perry-Rose's skills. Perry-Rose Dep. 169, 172; Ex. C, Perseo Dec. ¶ 29. The board work was located in the same area and only a few feet away from the other tool designers. Perry-Rose Dep. 172.

   35. Caucasian employees in the group also sometimes performed non-CATIA work as the workload fluctuated and employees would change workstations according to business needs. Perry-Rose Dep. 304; Ex. C, Perseo Dec. ¶ 29.

   36. In 1995, worldwide competition from manufacturers of commercial and military aircraft was forcing Boeing to become more efficient and managers were being constantly reminded to increase efficient, decrease costs and maintain quality. Declaration of Art Lallo ("Lallo dec.") ¶ 10; Ex. C, Perseo dec. ¶ 20. 37. In 1995, Boeing experienced a decline in work and decided to lay off some of its employees. Ex. G, Lallo dec. ¶ 11; Ex. C, Perseo Dec. ¶ 21.

   38. At the beginning of each year, human resources officials together with the managers place employees performing similar work on retention totems. Ex. G, Lallo Dec. ¶ 12; Ex. C, Perseo Dec. ¶ 22. Employees were ranted against each other based on skill and efficiency as well as quantity and quality of work. Id. The employees were then assigned a number. Id. The lowest ranted employees were given a three Id. The highest ranted employees were given a one. Id.

   39. Boeing would use the retention totem if, later in the year, there was a reduction in force. Id. If that happened, the poorest performing employees assigned a three rating would be the first to be laid off. Id.

   40. Art Lallo was the head of the group of managers that evaluated and ranked Perry-Rose in 1995. Ex. G, Lallo dec. ¶ 13.

   41. The managers unanimously decided that Perry-Rose should be assigned a retention rating of three, the lowest rating possible because of her consistently poor performance.

   42. Perry-Rose was not proficient in CATIA, in spike of more than a hundred hours of training. She was reducing her team's overall productivity. Id. Compared to most of the other employees in the group, her performance was abysmal. Ex. C, Perseo Dec. ¶ 23. In addition to Perry-Rose, several Caucasian men in her group also earned the lowest retention rating. Ex. C, Perseo Dec. ¶ 24; Ex. G, Lallo Dec. ¶ 13.

   43. Since she had been at Ridley Park, at all times relevant to this action, Perry-Rose had always earned the lowest retention rating Id.; Ex. B, Work History. 44. When Perseo was told that his group was overstaffed and that he had to lay off employees, he picked Perry-Rose and other individuals who had earned a retention rating of three. Ex. C, Perseo Dec. ¶ 25.

   45. In December 1995, Boeing told Perry-Rose that she was going to be laid off. Lay Off Notice dated December 15, 1995 (signed by Perry-Rose); Termination of Employment Form dated December 20, 1995 (signed by Perry-Rose).

   46. Two Caucasian employees in the group who received a three rating retired before the layoff. Ex. C, Perseo Dec. ¶ 27. The other employees with a three rating in the department at the time, including Perry-Rose, an African-American male, and two Caucasian males were laid off on January 1, 1996. Perry-Rose Dep. 373-374, Ex. C, Perseo Dec. ¶ 27.

   47. There were no contractors working in the group at the time of the layoff. Ex. C, Perseo Dec. ¶ 27.

   48. In March 1996, Boeing recalled Perry-Rose to the same job that she had before the layoff, tool designer, with the same salary that she received prior to the layoff under the supervision of the same manager, Carmen Perseo. See March 25, 1996 Recall From Active Lay Off Form; Letter from Darla Johnson to Perry-Rose dated March 28, 1996; Ex. B, Work History.

   49. Perry-Rose accepted the offer and began work on April 8, 1996. Perry-Rose Dep. 354; Ex. B, Work History.

   50. After Perry-Rose returned, her CATIA skills still did not significantly improve. See 1996 and 1997 Performance Evaluations; Ex. C, Perseo Dec. ¶ 28.

   51. Perseo continued to remind her that she needed to work on her CATIA skills in order to better her performance and that of the group. Id.; Perry-Rose Dep. 143-144, 146-148. 52. Perseo also reminded her to work harder on the cost and schedule issues that she had struggled with for so many years. Perry-Rose Dep. 146-148; Ex. C, Perseo Dec. ¶ 13.

   53. In 1997, Boeing again sent Perry-Rose to CATIA training. Perry-Rose Dep. 112, 323; Ex. B, Work History. This time she received approximately 80 additional hours of basic CATIA training. Id.

   54. Perry-Rose's managers are unaware of any employee who has received more CATIA training than Perry-Rose. Ex. C, Perseo Dec. ¶ 15; Ex. D, Eland Dec. ¶ 8.

   55. Perry-Rose was never able to become proficient in using CATIA to do tool design. Ex. C, Perseo Dec. ¶¶ 15-16.

   56. Constance Perry-Rose filed two charges with the EEOC alleging that she was a victim of race discrimination. Perry-Rose Dep. 342, 356; EEOC Charges of Discrimination dated July 18, 1995 and June 3, 1996.

   57. In the 1995 charge, she complained that her reassignment and allocation of overtime were discriminatory and that she had been subjected to a hostile work environment because she had been denied CATIA training, a special computer and a telephone. Ex. N, 1995 EEOC Charge of Discrimination.

   58. The EEOC dismissed the 1995 charge and issued a right to sue letter to Perry-Rose on October 7, 1996. Right to Sue Letter dated October 7, 1996.

   59. Perry-Rose received the right-to-sue letter, but never filed a lawsuit based on the 1995 claims. Perry-Rose Dep. 352-354.

   60. Perry-Rose field a second charge with the EEOC in 1996 and complained about her 1995 layoff and repeated the allegations of her 1995 charge. Ex. O, 1996 EEOC Charge. 61. Perry-Rose was treated fairly by defendant, and there is no merit to her claims.

   62. Plaintiff does not rebut Boeing's nondiscriminatory reasons for its actions. There is no evidence of pretext, hostile work environment, or retaliation. JUDGMENT

   AND NOW, this ____ day of July, 2004, judgment is entered in FAVOR of defendant and AGAINST plaintiff Constance Perry-Rose. ORDER

   AND NOW, this ____ day of July, 2004, upon consideration of Defendant's Motion for Summary Judgment Against Shomide Tokunbo, the response thereto and after a hearing, it is hereby ORDERED that said Motion is GRANTED based on the following facts as to which there is no genuine dispute:

   1. Shomide Tokunbo, a native of Nigeria, started working as an engineer/tool designer at Boeing in 1990. Deposition of Shomide Tokunbo ("Tokunbo Dep.") 8, 189, 208; Work History. This was a paycode 4 position. Declaration of Carmen Perseo ("Perseo Dec.") ¶ 3. Tokunbo was responsible for evaluating tool design requests and designing tools. Id.

   2. Tokunbo never held another job at Boeing. Tokunbo Dep. 108.

   3. Prior to working at Boeing, Tokunbo had no work experience doing computer aided design. Tokunbo Dep. 201.

   4. In 1993, Tokunbo voluntarily transferred to Boeing's Ridley Park, Pennsylvania facility. Tokunbo Dep. 22-24. Tokunbo's job did not change. Ex. B, Work History. 5. Tokunbo reported to several managers during his time at Boeing, including Art Lallo and Carmen Perseo. Declaration of Art Lallo ("Lallo Dec.") ¶ 2; and Ex. D, Perseo Dec. ¶ 2. Carmen Perseo was Tokunbo's fist level manager from approximately 1995 until he was terminated in 1996. Ex. D, Perseo dec. ¶ 2.

   6. In addition to his manager, there were several "lead" engineers, including Nunzio Bolognese and Tim Ingram, that worked in the same area as Tokunbo. Ex. D, Perseo dec. ¶ 4. The lead engineer was generally the most technically proficient and helped to coordinate work and assist the other employees, Id. at ¶ 14.

   7. "Lead" is not a formal position, but rather is an informal way that coworkers refer to an employee who has excelled as a leader and who helps coordinate the team's efforts. Ex. C. Lallo Dec. ¶ 4; Ex. D, Perseo dec. ¶ 5. There is no change in salary associated with being a lead. Id. It is the manger's decision whether or not to name a lead. Id.

   8. In some groups there is a "focal." Ex. C. Lallo Dec. ¶ 5; ex. D, Perseo Dec. ¶ 6. Focal is not a formal position rather an informal way that coworkers refer to someone who helps to coordinate the team's efforts on a particular project. Id. There also is no change in salary associated with being a focal. Id. It is the manager's decision whether or not to name a focal. Id.

   9. Tokunbo was a "direct charge" employee. Ex. D, Perseo Dec. ¶ 8. The time that he recorded working was directly charged to Boeing's customers, including the United States government. Id. at ¶ 8.

   10. Perseo frequently reminded all of the employees that it was important that they charge their time correctly. Id. At ¶ 10. It was Perseo's job as manager to ensure that all of the employees that he supervised correctly charge their time. Id. 11. If employees were not working on Boeing business, they were not permitted to charge their time to a Boeing project. Ex. D, Perseo Dec. ¶ 9. Rather, they were required to charge personal business or "PERBUS." Id.

   12. Billing for work that was not done wreaked havoc on Boeing schedules and budgets. Id. If a direct charge employee billed time to the project that he had not actually worked, he was overcharging the United States government. Id. Deposition of Nadine McClam-Brown ("McClam-Brown Dep.") 253-254.

   13. According to his managers, Tokunbo was technically less proficient than most other members of his group, he was slower than the other employees and made more mistakes, and he struggled to complete assignments and required more direction than other employees in his group. Ex. C, Lallo Dec. ¶ 8; Ex. D, Perseo Dec. ¶ 18.

   14. Because of Tokunbo's poor performance, the department often had cost and schedule overruns. Ex. C, Lallo dec. ¶ 8; Ex. D, Perseo Dec. ¶ 18.

   15. Although the managers and the leads tried to tell him how to complete assignments, Tokunbo disagreed with them about how the work should be done and did not change his approach. Tokunbo Dep. 263; ex. D, Perseo Dec. ¶ 19; ex. C, Lallo Dec. ¶ 9.

   16. Tokunbo's managers told him that he needed to improve the quality of his work, but he never did. Tokunbo Dep. 265-266, 285-286, 309-10, 317-318, 494-495, 499-501; Ex. D, Perseo Dec. ¶ 18-19; Ex. C, Lallo dec. ¶¶ 8-9.

   17. Boeing policy prohibits employees from using Boeing computer resources fro personal projects. Corrective Action Memo dated July 8, 1992; Tokunbo Dep. 412. 18. In 1991, Tokunbo used Boeing's CATIA computer program to complete a personal projects. Ex. F, Corrective Action Memo dated July 8, 1992; Tokunbo Dep. 409-412. During a routine audit of the system on December 20, 1992, Boeing detected that Tokunbo had personal data in his CATIA account Id. The manager verbally warned Tokunbo Id. He later was issued a written warning. Id. Tokunbo apologized and acknowledged that he understood that what he did was wrong. Id.

   19. It is Boeing's policy that personal long distance calls are to be kept to a minimum and are never to be charged either to Boeing or a Boeing client. Telephone Usage Policy (signed by Tokunbo); Ex. D, Perseo Dec. ¶ 32. Further, any time spent on personal calls cannot be filed to a Boeing contract. Id.

   20. Tokunbo's manager became suspicious that Tokunbo was not abiding by the telephone policy and asked Security to investigate. See Corrective Action Memo dated March 18, 1993; Tokunbo Dep. 37-38.

   21. The investigation revealed that Tokunbo had spent 3,224 minutes on personal long distance calls during 1992 while he was at Boeing. Id.

   22. In 1993, Tokunbo admitted that he made the telephone calls, that he had used "poor judgment" and that he had violated Boeing policy. Tokunbo Statement dated February 10, 1993; Tokunbo Dep. 29-34.

   23. Boeing suspended Tokunbo for three days in 1993 as a result of his violation of company rules. Tokunbo Dep. 34; Ex. H. Corrective Action Memo dated March 18, 1993.

   24. Tokunbo also reimbursed Boeing approximately $638 for the cost of the calls. Tokunbo Dep. 33; Ex. H, Corrective Action Memo dated March 18, 2003. 25. Tokunbo knew that if he violated Boeing's policyconcerning personal calls again that he could be immediately terminated. Tokunbo Dep. 46-47; Ex. H, Corrective Action Memo dated March 18, 1993.

   26. Tokunbo never field any grievance about the 1993 discipline. Tokunbo Dep. 36, 27. In July 1995, Perseo found Tokunbo seated at his desk with his eyes closed for more than a minute. Tokunbo Dep. 81, 84, 93-94; Ex. D, Perseo Dec. ¶ 26.

   28. Perseo confronted Tokunbo and Tokunbo denied that he was sleeping but instead maintained that he was praying. Perseo Dec. ¶ 26. Perseo decided to give Tokunbo another chance, decided not to discipline him, and instead told him not to do it again. Id.

   29. During a routine audit on June 28, 1995, Boeing discovered that Tokunbo was again using Boeing computers and the CATIA program for personal use. Corrective Action Memo dated July 18, 1995; Tokunbo Dep. 99-100.

   30. In 1995, Tokunbo knew that using Boeing's computers for personal business was against Boeing policy because had already been given verbal and written warnings for the same misbehavior. Ex. F, Corrective Action Memo dated July 8, 1992; Tokunbo Dep. 99-100.

   31. Tokunbo had received training that reviewed Boeing's policy against the use of Boeing resources for personal purposes. Ex. J, Corrective Action Memo dated July 18, 1995.

   32. Boeing confronted Tokunbo and he admitted that he had used Boeing resources for personal business and that he was wrong. Statement of Shomide Tokunbo dated July 5, 1995; Tokunbo Dep. 99-100.

   33. Tokunbo understood that Boeing's rules prohibited his behavior but he did it anyway. Id. 34. Boeing suspended Tokunbo for two weeks from July 23 through August 3, 1995. Ex. J., Corrective Action Memo dated July 18, 1995; Tokunbo Dep. 103-104.

   35. Boeing warned Tokunbo again that if he violated any more company rules that he could be fired. Id.

   36. Tokunbo never filed any sort of grievance about the 1995 suspension or complained to the EEOC or PHRC about it. Tokunbo Dep. 105-106.

   37. In late 1995, worldwide competition from manufacturers of commercial and military aircraft was forcing Boeing to become more efficient and managers were being constantly reminded to increase efficiency, decrease costs and maintain quality. Ex. C, Lallo Dec. ¶ 10; Ex. D, Perseo Dec. ¶ 20. In 1995 Boeing began to lose work and decided to layoff some of its employees. Ex. C, Lallo Dec. ¶ 11; ex. D, Perseo Dec. ¶ 21; Tokunbo Dep. 273.

   38. Art Lallo was the head of the group of managers that evaluated and ranked Tokunbo in 1995. Ex. C, Lallo Dec. ¶ 13; Ex. D, Perseo Dec. ¶ 23. The managers unanimously decided that Tokunbo should be assigned a retention rating of three, the lowest rating possible. Id. Tokunbo's performance was poor, he was not improving, and he was reducing his team's overall productivity. Id. In addition to Tokunbo, several Caucasian men in his group also earned the lowest retention rating. Ex. D, Perseo dEc. § 24; Ex. C. Lallo Dec. ¶ 13.

   39. Since he began working at Ridley Park, Tokunbo had always earned the lowest retention rating. Ex. B, Work History.

   40. When Perseo was told that his group was overstaffed and that he had to lay off employees, he picked Tokunbo and other individuals who had earned a retention rating of three. Ex. D, Perseo Dec. ¶ 27. 41. In December 1995, Perseo told Tokunbo that he was going to be terminated because of a lack of work. Id. Tokunbo Dep. 204, 273; Layoff Notice dated December 15, 1995 (signed by Tokunbo); Termination of Employment Form dated December 20, 1995 (signed by Tokunbo).

   42. The employees affected by the reduction in force included both African-Americans and Caucasians. Two Caucasian employees with the lowest retention rating decided to retire before the layoff. Ex. D, Perseo Dec. § 27. Other retention rating three employees, including Tokunbo, an African-American female, and two white males were laid off on January 1, 1996. Tokunbo Dep. 400; Ex. D, Perseo Dec. ¶ 27; Deposition of Constance Perry-Rose ("Perry-Rose Dep.") 373-374. All retention level three employees in the group at the time of the layoff were treated the same. Ex. D, Perseo Dec. ¶ 27.

   43. In order to make the transition easier for employees, Boeing offered employees who were laid off a choice of severance benefits. Tokunbo Dep. 400-401.

   44. Employees could choose either a weekly payment or a lump sum. Id. The lump sum represented several months of pay. Deposition of Ron Clarke ("Clarke Dep."). 388-389.

   45. Tokunbo chose to receive a lump sum severance benefit. Tokunbo Dep. 400-401; Layoff Benefit Election Form.

   46. Tokunbo went to work for another company as a tool designer less than a month after he was laid off by Boeing. Tokunbo Dep. 403-404. He was subsequently laid off from that company. Id. at 405-406.

   47. In March 1996, Boeing recalled Tokunbo to the same job that he had before the layoff, engineer/tool designer, with the same salary that he received prior to the layoff under the supervision of the same manager, Carmen Perseo. See March 25, 1996 Recall From Active Layoff Form; Letter from Darla Johnson to Shomide Tokunbo dated March 28, 1996; Tokunbo Dep. 275.

   48. Tokunbo accepted Boeing's recall offer and began working again at Boeing on April 8, 1996. Tokunbo Dep. 277, 408.

   49. During the 1996 layoff, Tokunbo missed only about one week of pay. Tokunbo Dep. 409.

   50. Tokunbo prefers to work at Boeing even thought other employers both during the layoff and after his termination in 1996 paid him more than Boeing. Tokunbo Dep. 489.

   51. After the 1996 recall, Tokunbo did not work very quickly or accurately. Ex. D, Perseo Dec. ¶ 28.

   52. After he returned in April 1996, Tokunbo had no contact with Lallo. Tokunbo Dep. 295.

   53. On August 23, 1996, Perseo reviewed Tokunbo's time card for the previous day. Ex. D, Perseo Dec. ¶ 30.

   54. Tokunbo had been scheduled on August 22, 1996 to work from 6:00 a.m. until 2:42 p.m. (8 hours plus 42 minutes for lunch). Id. Perseo was at work on August 22, 2996 and noticed that Tokunbo had arrived more than an hour late for work and left at his normally scheduled time. Id.

   55. Tokunbo filled out and submitted his time card for August 22, 1996, showing only that he had taken an extra half hour for personal business. Id. The remainder of his time he charged to a government contract. Id. Perseo confronted Tokunbo and told him that he had to correct his time card. Tokunbo Dep. 110-111; Ex. D, Perseo Dec. ¶ 30. 56. Tokunbo admits that on August 22, 2996 he was more than an hour late to work. Tokunbo Dep. 108-109, 120; Ex. D, Perseo Dec. ¶ 3.

   57. Although Tokunbo initially refused to change his time card, it was eventually changed and Perseo verbally warned Tokunbo that he must not misrecord his time or attendance again and that Boeing tool such behavior very seriously. Tokunbo Dep. 110-111; 165-166; ex. D, Perseo Dec. ¶ 30.

   58. Tokunbo submitted a time card reporting that on August 29, 1996, he worked on a Boeing contract. Ex. D, Perseo Dec. ¶ 31. Perseo, however, did not believe that Tokunbo had been at work at all that day. Id.

   59. At the time, Tokunbo had been working on a project that was overdue. Id. Ingram, a lead reported to Perseo that he had checked on the computer system and Tokunbo's work was not completed on August 29, 1996. Id. Ingram said he looked for Tokunbo from the time his shift started at 6:00 a.m. until he had to go to a meeting at 8:00 a.m., but never found him or anybody who had seen Tokunbo that day. Id. Ingram then left a post-it note on the keyboard of Tokunbo's computer requesting that he page Ingram as soon as possible to discuss the project. Id. Tokunbo never paged or called him that day. Id. When Ingram returned from his meeting, the post-it had not been moved. Id. He never saw Tokunbo the entire day. Id.

   60. Given the circumstances and the fact that Perseo had caught Tokunbo submitting false time records just one week earlier, Perseo reported the matter to Human Resources Department. Id. 61. On September 4, 1996, Perseo, his manager, and an HR representative met with Tokunbo to discuss the August 29, 1996 attendance problem. Tokunbo Dep. 131-132; Ex. D, Perseo Dec. ¶ 32.

   62. In an effort to assist Tokunbo, Boeing decided to try to find evidence that Tokunbo was at work that day. Id. Boeing then gathered Tokunbo's telephone records. Id.

   63. There is no record of Tokunbo making any phone calls on August 29, 1996. Boeing Phone Records for Tokunbo between June 17, 1996 and September 6, 1996.

   64. During approximately three months in 1996, Tokunbo spent over 50 hours making personal long distance calls while at work. Id.; Tokunbo Dep. 40. In 1996, Tokunbo called several friends long distance at Boeing's expense and this was a violation of company rules. Tokunbo Dep. 41-45.

   65. The time that Tokunbo spent on personal calls should not have been billed to Boeing or its clients. Tokunbo Dep. 45-47.

   66. In October 1996, the Disciplinary Review Board met and considered the phone records, testimony from Ingramand Perseo, Security's report, and Tokunbo's history of excessive phone usage and progressive discipline. Declaration of Dominic Marinelli ("Marinelli Dec.") ¶ 18.

   67. Because of the severity of the infractions, the Disciplinary Review Board decided to terminate Tokunbo's employment. Id.

   68. Tokunbo's last day working for Boeing was October 31, 1996. Termination of Employment Form dated October 31, 1996; Ex. B, Work History.

   69. Tokunbo was familiar with Boeing's equal opportunity and anti-discrimination policies. Tokunbo Dep. 394-397. 70. Tokunbo did not complain to anyone in Boeing's HR Department or its Equal Employment Opportunity office that he believed that he had been treated unfairly because of his race. Tokunbo Dep. 331.

   71. Tokunbo admits that he was bad employee. He violated defendant's policy. There is no evidence of discrimination or retaliation. JUDGMENT

   AND NOW, this ____ day of July, 2004, judgment is entered in FAVOR of defendant and AGAINST plaintiff Shomide Tokunbo.

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