United States District Court, D. Oregon
Shantubhai N. Shah Plaintiff pro se
Krishna Balasubramani Sather Byerly & Holloway, LLP
Attorney for Defendants
OPINION AND ORDER
JELDERKS, U.S. MAGISTRATE JUDGE
se Plaintiff Shah brings this action against Defendants
Meier Enterprises, Inc. (“Meier”); and
individuals Paul Giever, Steven Anderson, and Bobbi Keen
alleging age, race, and national origin discrimination under
federal and Washington state laws, whistle blower retaliation
under Oregon and Washington state laws; and common law
retaliatory wrongful discharge.
parties have filed cross motions for summary judgment.
Plaintiff has also filed two motions for sanctions, a motion
to withdraw consent to Magistrate Judge Jurisdiction, a
motion for reconsideration of this Court's Opinion and
Order denying Plaintiff leave to file a Second Amended
Complaint, and a motion for “Leave to file
Plaintiff's Affidavit in Support of First Amended Motion
for Summary Judgment.”
motions for sanctions, motion for reconsideration and motion
to withdraw consent are denied. Plaintiff's motion for
leave to file an affidavit is granted.
reasons set forth below, Defendants' motion for summary
judgment is granted and Plaintiff's motion for summary
judgment is denied.
was 77 years old at the time of filing and was 75 years old
during the relevant period. He was born in India and
identifies himself as an Asian American. (Am.Compl.
¶¶ 2, 14). During the relevant time period,
Plaintiff was a “Registered Professional
Engineer” in Oregon and Washington who was employed by
Meier Enterprises as a Sr. Electrical Engineer/Project
Manager. (Am.Compl. ¶¶ 16, 17).
Enterprises is a privately-held Washington Corporation with
its principal place of business in Kennewick, Washington. It
is also a registered foreign corporation with Oregon's
Secretary of State. (Am.Compl. ¶3; Meier Ent., Inc.
Answer ¶3; Anderson Decl. ¶2). It is a
full-service, architectural and engineering consulting firm.
(Anderson Decl. ¶2). Defendant Steve Anderson was the
President of Meier from 2006 through August 2016. (Anderson
Decl. ¶3). Defendant Paul Giever succeeded Anderson and
currently holds the position of President. (Giever Depo. p.
5). Defendant Bobbi Keen is the Controller/Human Resources
Director. (Keen Decl. ¶1).
Group Managers and the Controller/Human Resources Director
report directly to the President. (Keen Decl. ¶2).
Meier's strategic committee, which consisted of Defendant
Anderson, Defendant Giever, Defendant Keen, CAO/Director of
Marketing Denise Sweeden, and Director of Projects Anthony
Cockbain, is responsible for hiring professional engineers.
(Keen Decl. ¶11). Meier uses several different avenues
to find qualified candidates, including Volt Workforce
Solutions, which was how Defendants were put in contact with
Plaintiff. (Keen Decl. ¶¶4, 7).
was seeking to fill both an Electrical Group Manager position
and a Senior Electrical Engineer/Project Manager position.
(Keen Decl. ¶5, 6). After being contacted by Volt, Keen,
Anderson and Mechanical Group Manager Colin Bates interviewed
Plaintiff by phone on March 10, 2016. (Keen Decl. ¶8;
Anderson Decl. ¶¶5, 6). Meier did not consider
Plaintiff for the Group Manager position after the initial
interview because he lacked Washington Labor and Industries
(“L&I”) familiarity and experience and
because he and his work were unknown to Defendants. (Keen
Depo. pp. 32, 33, 34, 37, 39-40, 41-42; Anderson Depo. pp.
40-41, 42, 44-45, 78-79; Anderson Decl. ¶6). Instead,
Meier asked Plaintiff to continue the interview process for
the Senior Electrical Engineer/Project Manager position in
the Vancouver, Washington office. This position would report
to the Electrical Group Manager. (Shah Depo. p. 16, Depo. Ex.
2). Plaintiff flew to Kennewick, Washington on March 14,
2016, for an in-person interview with Anderson, Bates and
electrical professional engineer consultant Pam Arneson.
(Shah Depo. pp. 18, 20; Keen Decl. ¶10). On March 21,
2016, Plaintiff had an in-person interview in the Vancouver
office with Anderson and several of the Vancouver employees.
(Anderson Decl. ¶5). Plaintiff testified that no one
made any comments about his age, race or national origin
during the interview process. (Shah Depo. pp. 21-22). Meier
offered Plaintiff the Senior Electrical Engineer/Project
Manager position on March 22, 2016 and Plaintiff began work
that same day. (Shah Depo. p. 22; Depo. Ex. 3). Plaintiff was
informed that he was being hired on an at-will basis and that
the first 60 days of employment constituted a probationary
period. (Shah Depo. p. 23; Depo. Ex. 3).
received Kelly Waterman's resume on April 6, 2016, for
the Electrical Group Manager position. (Keen Decl. ¶16).
Waterman is younger than Plaintiff and is Caucasian. (Def.
Reply p. 2).Waterman had experience with Washington L&I
and knew the local L&I reviewer. (Keen Depo. p. 37).
Waterman and his work were also known to Meier's clients
and he had demonstrated an ability to successfully manage
difficult projects. (Keen Depo. pp. 33, 37; Anderson Decl.
¶23). Meier sent an offer letter to Waterman on April
26, 2016. (Keen Decl. ¶16).
meantime, Anderson was serving as the interim Electrical
Group Manager and was managing the administrative functions
of the Electrical Group. (Anderson Decl. ¶4). He
assigned Plaintiff as the professional electrical engineer
for the Pasco High School project. (Anderson Decl. ¶7).
Plaintiff was responsible for the original electrical design
package sent to L&I for state required review. The
submittal was twice rejected. (Anderson Decl. ¶7).
Plaintiff was asked to address the reviewer comments. In an
email dated Wednesday, April 27, 2006, Anderson asked
Plaintiff to discuss concerns raised during the L&I
review process and informed Plaintiff that Meier could not
afford any further delay. (Shah Depo. Ex. 10). Plaintiff
emailed Pam Arneson regarding the reviewer's comments and
responded by email to Anderson that he would be out of town
until Monday. (Shah Depo. Exs. 10, 15). Anderson raised
additional issues with Plaintiff's work performance in an
email later that day, telling Plaintiff he needed to pay
closer attention to detail and that he had been removed from
the Pasco High School job “because this was not
happening.” (Shah Depo. Ex. 12; Anderson Decl.
¶¶7-9). Plaintiff responded “I trusted Doug
(Farris, the electrical designer) to do what he was doing on
different plans. In rush job out of door we make errors that
should not happen. I will give utmost attention and not trust
designers.” (Shah Depo. Ex. 13). Defendants found it
necessary to hire an outside consultant to correct and carry
on the work that Plaintiff had been assigned. (Anderson Decl.
email dated May 2, 2016. In his email Plaintiff wrote:
I have major concerns about projects designed by Doug without
my directions or supervision and it takes lot [sic] of time
and effort to understand what he has done . . . . He hardly
ever talks to me what he is doing. . . . There is not a
direct link all hours of work between us. Doug is unorganized
and makes lots of errors in assumptions and names of panel. I
cannot trust his design work without my engineering
I would be doing injustice both to Meier and its clients by
stamping drawings of projects designed without my directions
In addition it's a violation of engineering practice to
stamp drawings not done under engineer's supervision or
directions. My suggestions would be to design projects by
Zack in Vancouver office with my directions so I have comfort
as an Engineer of Record.
(Shah Depo. Ex. 18.).
response, Anderson advised Plaintiff by email that he had
been hired to direct and review the work of the engineers and
designers. (Shah Depo. Ex. 19; Anderson Decl. ¶9). He
informed Plaintiff that an outside consultant had been hired
to review Plaintiff's work and that was “not
good.” Anderson indicated that he would talk to Farris
about Plaintiff's comments but that Plaintiff needed to
“concentrate on your project requirements and they need
to improve.” (Shah Depo. Ex. 19). Plaintiff advised
Anderson that he would be taking the next two days off from
work, time off he had failed to properly request under Meier
company policy. (Shah Depo. pp. 70, 72; Depo. Ex. 21).
Plaintiff's employment period, the strategic committee
met on April 14, 2016 and April 26, 2016 and discussed, among
other items, concerns about Plaintiff's work performance.
(Anderson Decl. ¶12; Keen Decl. ¶ 11). The
committee discussed concerns that had been expressed by other
staff and whether Meier should continue Plaintiff's
employment despite Plaintiff being involved in several
projects. (Keen Decl. ¶13, Anderson Decl.
3, 2016, one of Meier's clients on a different project
identified significant issues with the electrical portion of
a draft report that was Plaintiff's responsibility. (Shah
Depo. Ex. 22). One of Plaintiff's colleagues also raised
issues with Plaintiff's thoroughness and level of
contribution. (Shah Depo. Ex. 23; Newell Decl. ¶¶4,
6). These concerns were communicated to Plaintiff on May 3,
2006. (Shah Depo. Ex. 23). Based on Plaintiff's
unsatisfactory work performance on the Pasco High School
project, client complaints about his work product on a
separate project, and the questionably timed and improperly
requested time off, the strategic committee decided to
terminate Plaintiff's employment. (Anderson Decl. ¶
21). Plaintiff was not given a formal warning to improve his
work because he was in his probationary period. (Keen Depo.
its agreement with Volt, Meier would incur an $18, 500
recruiter fee if Plaintiff stayed with Meier more than 60
days. (Keen Decl. ¶¶6, 15). The last day to
terminate Plaintiff's employment without incurring the
fee was May 9, 2016. (Keen Decl. ¶15). On May 9, 2016,
after 60 days of employment and only 35 days of work,
Anderson met with Plaintiff in the Vancouver office, ...