The opinion of the court was delivered by: Lewis T. Babcock, Chief Judge
The plaintiff Nabeel Faizi, after ten years of service and promotion to the rank of Assistant Manager, lost his job with the defendant Expo Design Center ("Expo"), a subsidiary of the defendant Home Depot USA ("Home Depot"), after an investigation into the violation of a safety rule. The parties have filed cross motions for summary judgment. The motions are adequately briefed and oral argument would not materially aid their resolution. For the reasons stated below, I DENY Mr. Faizi's motion and GRANT the defendants' motion.
The facts, undisputed except where otherwise noted, are these. Mr. Faizi, born in Afghanistan on November 17, 1962 and later naturalized an American citizen, began working as an associate for Home Depot in October, 1993 at a store in California. In 1995, Mr. Faizi transferred to a store in Colorado, where he received a promotion to head of the kitchen and bath department. In 2001, Mr. Faizi transferred to an Expo store, attaining the status of Assistant Manager under the supervision of Manager Lawrence Foerster. Throughout, his employment was at will and he acknowledges that the defendants promised him no definite period of employment. Mr. Faizi's skills and diligence proved invaluable, and praises rained down upon him from all quarters. Effusive remarks adorned his performance reviews and customers wrote to his superiors specifically to commend his services.
After the terrorist attacks of September 11, 2001, Mr. Faizi learned that some subordinates had expressed verbal caricatures of persons of Arab descent. These comments were not made in Mr. Faizi's presence -- he has no reason to believe that the wisecracks were directed at him -- and he took no disciplinary action. Mr. Foerster occasionally referred to Afghani co-workers as Mr. Faizi's "countrymen." Though Mr. Faizi would have preferred that Mr. Foerster use the associates' names, he concedes that the descriptor is accurate. Once, three women subordinate to Mr. Faizi asked him why he was not wearing a turban. Contrary to a policy requiring management personnel to report discriminatory remarks, Mr. Faizi did not report any of these incidents to his superiors. He did not make use of a toll-free telephone number established for Home Depot employees anonymously to report harassment, nor did he confront the putative offenders.
In November, 2002, a female subordinate complained that Mr. Faizi had directed sexually-suggestive comments toward her. Mr. Faizi denied the allegations. Susan Purcell, who oversaw human resource matters for stores within the geographic division, issued to Mr. Faizi a written warning, which informed that similar behavior in the future would result in disciplinary action, possibly termination.
On the afternoon of January 1, 2003, Mr. Faizi discovered -- its origin had not previously been disclosed to him -- a model display of a bath showroom set upon a pallet of above-average length and shrink-wrapped. The display impeded customers' access to Expo's products and, before leaving the store, Mr. Faizi instructed Dan Rouch, who managed the responsive department, to remove the obstacle to the receiving room. When, upon arriving the next morning, Mr. Faizi found the model still ensconced, he enlisted the assistance of Brendan Davis, then an Expo associate subordinate to Mr. Faizi. The pallet presented a conundrum: approached from the end, it was too long to respond to the forks of a lift truck; approached from the side, it presented openings too distant to admit the forks, expanded to their extreme range.
Next began a series of events about which some dispute prevails. Mr. Faizi and Mr. Davis, each a protagonist in his version, differ in the following. According to Mr. Faizi, Mr. Davis managed to move the display to the receiving room by machinations about which Mr. Faizi could only speculate; Mr. Faizi testified that a pallet jack inserted into one end of the pallet might enable a man to drag the display along the floor. Desiring to lift the object onto a storage rack some fifteen feet above the floor, Mr. Davis then sought Mr. Faizi, who, with Mr. Davis' help, managed to force the forks of a lift truck under the side of the pallet and lift the package onto the rack. Extracting the forks from under the stored display by normal methods proved impossible and Mr. Faizi claims to have gone looking for a ladder. When he returned, Mr. Davis was standing on the rack, having climbed up the side, and had solved the puzzle. Mr. Faizi did not conjecture how Mr. Davis simultaneously lifted the display and moved the fork truck. He claims to have insisted that Mr. Davis climb down immediately. Mr. Davis complied, but purportedly denied knowledge that he had violated any company rules. Mr. Faizi, concluding that Mr. Davis had not properly been trained, decided not to discipline him.
According to Mr. Davis, Mr. Faizi removed the display to the receiving room by lift truck before seeking Mr. Davis' assistance. Mr. Davis could not have done so because he was not at that time trained or licensed to operate pallet-moving equipment. (This Mr. Faizi does not dispute.) Mr. Faizi instructed Mr. Davis to climb onto the rack and push the display while Mr. Faizi reversed the lift truck, thus extracting the forks. Mr. Davis had then been working at Expo only a few weeks. Though he knew climbing on storage racks constituted a violation of Expo's safety code, he dared not disobey the order of an assistant store manager. He asserts that Mr. Faizi made no mention of any safety infraction at that time.
In either event, the defendants were unimpressed by the ingenuity of Messrs. Faizi and Davis. After demanding of Mr. Davis how the display arrived at so lofty a perch, the human resources department commenced an investigation. Chris Jeffrey, the store's human resources manager, obtained a written statement from Mr. Davis. On January 8, 2003, Mr. Jeffrey solicited Mr. Faizi's version of events. He claims to have then instructed Mr. Faizi not to talk to anyone about the investigation or the underlying event, a claim Mr. Faizi disputes. It is undisputed that Mr. Faizi next sought and found Mr. Davis and inquired how Mr. Jeffrey had learned of the rack-climbing incident.
Here again, the narrations diverge. According to Mr. Faizi, he told Mr. Davis to tell the truth about the incident. He warned that Mr. Davis would likely be disciplined when the investigation was completed.
According to Mr. Davis, Mr. Faizi scolded him for recounting the event and warned that he would be terminated as a result. Mr. Faizi educated Mr. Davis in his own version of events -- Mr. Davis had voluntarily climbed the rack before Mr. Faizi was able to respond -- and instructed him to recount that narrative in the future. Mr. Davis, who believed his job to be in jeopardy, immediately reported this exchange to the head of his department, who reported up the chain to Mr. Jeffrey. At this time, Mr. Jeffrey determined to place Mr. Faizi on administrative leave, and did so the next morning, January 9, 2003. Ms. Purcell later communicated to Mr. Jeffrey the defendants' decision to fire Mr. Faizi.
The defendants' agents proffer plural justifications for Mr. Faizi's discharge. Mr. Foerster, who had no part in the decision, believes that the defendants fired Mr. Faizi for retaliating against Mr. Davis during their January 8, 2003 conversation. Mr. Jeffrey also believes that Mr. Faizi's prohibited pursuit of Mr. Davis warranted disciplinary action. Alternatively, both Mr. Jeffrey and Ms. Purcell indicate that Mr. Faizi's safety violation resulted in the loss of his job. The defendants committed themselves to this position on paper; the notice of Mr. Faizi's termination gives as reason a "safety violation."
Ms. Purcell, with whom the decision to terminate rested, testified in deposition that she saw in Mr. Faizi's behavior a pattern of abuse of power, beginning with his alleged sexual innuendo in November, 2002. As between the competing iterations of the events of January 2, 2003, Ms. Purcell found Mr. Davis' recounting more credible. Mr. Faizi was not disciplined on the strength of Mr. Davis' veracity alone; assuming Mr. Faizi's statements to be true, Mr. Faizi should have fired Mr. Davis and his failure to do so constituted a distinct offense. However, in that hypothetical circumstance, the defendants might have meted out against Mr. Faizi some discipline short of termination. Though Mr. Faizi disputes his complicity in Mr. Davis' ascension of the storage rack, he disputes neither that the action constituted a breach of the defendants' safety code nor that he was responsible, as Mr. Davis' superior, for enforcing compliance.
Mr. Faizi presses claims for race-based harassment, race-based discrimination, breach of contract, promissory estoppel, intentional infliction of emotional distress, and breach of implied contract. He moves for summary judgment on the contract and estoppel ...