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Shah v. Meier Enterprises, Inc.

United States District Court, D. Oregon

September 13, 2018

SHANTUBHAI SHAH, Plaintiff,
v.
MEIER ENTERPRISES, INC., a Washington Corporation; PAUL GIEVER, CEO/President; STEVEN ANDERSON, an Individual; and BOBBI KEEN, an Individual; Defendants.

          Shantubhai N. Shah Plaintiff pro se

          Krishna Balasubramani Sather Byerly & Holloway, LLP Attorney for Defendants

          OPINION AND ORDER

          JOHN JELDERKS, U.S. MAGISTRATE JUDGE

         Pro 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.[1]

         The 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.”

         Plaintiff's motions for sanctions, motion for reconsideration and motion to withdraw consent are denied. Plaintiff's motion for leave to file an affidavit is granted.

         For the reasons set forth below, Defendants' motion for summary judgment is granted and Plaintiff's motion for summary judgment is denied.

         Background

         Plaintiff 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).

         Meier 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).

         Five 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).

         Meier 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).

         Meier 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).

         In the 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. ¶8).

         In an 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 directions.
I would be doing injustice both to Meier and its clients by stamping drawings of projects designed without my directions or supervision.
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.).

         In 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).

         During 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. ¶¶12-13).

         On May 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. p. 74).

         Under 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, ...


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