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Barcikowski v. Sun Microsystems

February 24, 2006

MARIAN J. BARCIKOWSKI, PLAINTIFF,
v.
SUN MICROSYSTEMS, INC., A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Judge Edward W. Nottingham

ORDER AND MEMORANDUM OF DECISION

This is an employment discrimination case. Plaintiff Marian Barcikowski alleges that by terminating his employment, his former employer, Defendant Sun Microsystems, Inc. discriminated against him on the basis of his age, religion, and disability in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. § 621 et seq. (2005), Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A. § 2000e et seq. (2005), and the Americans with Disability Act ("ADA"), 42 U.S.C.A. §§ 12101--12213 (2005), and interfered with and retaliated against Plaintiff's exercise of his rights provided under the Family and Medical Leave Act ("FMLA"), 29 U.S.C.A. § 2601 et seq. (2005). In addition, Plaintiff seeks liquidated damages and punitive damages on his claims. This matter is before the court on "Sun Microsystems Inc.'s Motion for Summary Judgment," filed March 23, 2005. Jurisdiction is premised upon federal question, 28 U.S.C.A. §§ 1331, 1343 (2005).

FACTS

1. Factual Background

Plaintiff, a male of Catholic faith born August 21, 1954, worked for Defendant from approximately January 28, 1998 through February 12, 2002. (Compl. ¶¶ 3, 13.) Defendant is a publicly held company that creates, produces, and sells computer hardware and software. (Sun Microsystems Inc.'s Mot. for Summ. J., Sun Microsystems Inc.'s Br. in Supp. of Mot. for Summ. J., Statement of Undisputed Material Facts ¶¶ 1, 4 [filed Mar. 23, 2005] [hereinafter "Def.'s Br."]; admitted at Pl.'s Br. in Opp. to Def.'s Mot. for Summ. J., Resp. to Statement of Undisputed Material Facts ¶¶ 1, 4 [filed June 3, 2005] [hereinafter "Pl.'s Resp."].) Defendant also provides its customers with classes and instructional materials relating to its products through its Sun Educational Services ("SES") business unit. (Id., Statement of Undisputed Material Facts ¶ 2; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 2.) SES is a part of Defendant's Sun Enterprise Services business unit. (Id., Statement of Undisputed Material Facts ¶ 2; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 2.) Plaintiff worked for Defendant as SES Americas Controller, and reported to Brenda Osborne, SES Controller. (Id., Statement of Undisputed Material Facts ¶¶ 5, 7; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 5, 7.) Brenda Osborne reported to Mick Murray, vice president of Sun Enterprise Services, who in turn reported to Defendant's chief financial officer. (Id., Statement of Undisputed Material Facts ¶ 5; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 5.)

As SES Americas Controller, Plaintiff was responsible for accurately analyzing and reporting the financial results of Defendant's SES Americas business unit for incorporation into Defendant's publicly issued financial statements. (Id., Statement of Undisputed Material Facts ¶ 7; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 7.) In August 2001, Robyn Denholm replaced Murray as vice president of Sun Enterprise Services. (Id., Statement of Undisputed Material Facts ¶ 8, Ex. A--3 at 19 [Dep. of Robyn Denholm]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 8.) Similarly to Plaintiff, Denholm is of Catholic faith. (Id., Statement of Undisputed Material Facts ¶ 11, Ex. A--1 at 100 [Dep. of Marian Barcikowski], Ex. A--3 at 9 [Dep. of Robyn Denholm]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 11.)

a. September 10, 2001 Balance Sheet Review

On or about September 10, 2001, Denholm held a meeting in order to review the balance sheets and financial statements of the business units for which she was responsible. (Id., Statement of Undisputed Material Facts ¶¶ 9, 10, Ex. A--3 at 30--32 [Dep. of Robyn Denholm], Ex. A--4 at 50 [Dep. of Jeffrey Powley]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 9, 10.) Plaintiff was not present at the balance sheet review meeting. (Id., Statement of Undisputed Material Facts ¶ 10, Ex. A--4 at 57 [Dep. of Jeffrey Powley]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 10.) At the time Denholm conducted the balance sheet review meeting, she had not yet met Plaintiff and did not know Plaintiff's age, Plaintiff's religious persuasion, or whether Plaintiff was disabled or regarded as disabled. (Id., Statement of Undisputed Material Facts ¶ 11, Ex. A--1 at 69--70 [Dep. of Marian Barcikowski]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 11.)

During the course of the balance sheet review meeting, Denholm learned that SES Americas's financial statements, for which Plaintiff was responsible, reflected several million dollars of accrued revenues and liabilities. (Id., Statement of Undisputed Material Facts ¶ 12, Ex. A--3 at 30--32, 36 [Dep. of Robyn Denholm]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 12.) "Accrued" revenues and liabilities are amounts of monies reflected on Defendant's financial statements as revenues and liabilities, but which have not yet been received or paid by Defendant. (Id., Statement of Undisputed Material Facts ¶ 13; admitted in relevant part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 13.) Accrued revenues and liabilities must be documented and well-substantiated in order to appear on Defendant's financial statements. (Id.) Denholm requested more information regarding the accrued revenues and liabilities. (Id., Statement of Undisputed Material Facts ¶ 14, Ex. A--3 at 32, 39--41, 53--57 [Dep. of Robyn Denholm]; deemed admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 14; Reply Br. of Def. Sun Microsystems, Inc., in Supp. of mot. for Summ. J., Ex. A--17 at 44--47 [Dep. of Robyn Denholm], Ex. A--18 [Dep. of Jeffrey Powley at 50--52, 55 [Dep. of Jeffrey Powley] [filed July 26, 2005] [hereinafter "Def.'s Reply"].) Denholm ultimately opined that insufficient documentation existed to support the accrued revenues and liabilities for which Plaintiff was responsible. (Def.'s Br., Statement of Undisputed Material Facts ¶ 15, Ex. A--3 at 53--57 [Dep. of Robyn Denholm]; deemed admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 15, Ex. B at 142--44 [Dep. of Carl Douglas Brasier].)

b. Plaintiff's Medical Leave

On September 25, 2001, Plaintiff experienced symptoms of dizziness and fatigue and sought medical treatment. (Id., Statement of Undisputed Material Facts ¶ 16; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 16.) Medical professionals diagnosed Plaintiff as suffering from stress, anxiety, and hypertenstion and give him anxiety and hypertension medications. (Id., Ex. A--8 [Dep. of Michael Schneider, P.A.].) Plaintiff requested, and Defendant granted, permission to take a leave of absence from his employment from September 25, 2001 through January 2, 2002. (Id., Statement of Undisputed Material Facts ¶ 17; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 17.)

Within a few weeks of the commencement of his leave of absence, Plaintiff's symptoms abated. (Id., Statement of Undisputed Material Facts ¶ 26; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 26.) On December 20, 2001, Plaintiff's therapist released Plaintiff to return to work on January 2, 2002. (Id.) Plaintiff's therapist limited Plaintiff to working forty hours per week, and opined that Plaintiff was capable of performing the functions of his job on a forty-hour per week basis. (Id., Ex. A--10 at 25 [Dep. of Joel McFarland].) Plaintiff returned to work for Defendant on January 2, 2002. (Id., Statement of Undisputed Material Facts ¶ 31; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 31.) As of February 1, 2002, Plaintiff's therapist's notes reflect that Plaintiff believed he had met his goals in therapy and his treatment was complete. (Id., Statement of Undisputed Material Facts ¶ 30; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 30.) Plaintiff's therapist terminated the case, and Plaintiff never consulted his therapist again. (Id.)

c. Investigation into Plaintiff's Accruals

During Plaintiff's absence, Doug Brasier filled in for Plaintiff. (Id., Ex. A--9 at 87--88 [Dep. of Carl Douglas Brasier]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 15.) Denholm asked Brasier and the employees who reported to Plaintiff to investigate the accrued revenues and liabilities that Plaintiff had listed on the SES financial statements. (Id., Statement of Undisputed Material Facts ¶ 19; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 19.) Denholm also met with Plaintiff regarding the accruals. (Id., Statement of Undisputed Material Facts ¶ 21, Ex. A--3 at 119--20 [Dep. of Robyn Denholm]; deemed admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 21.) Denholm summarized the results of her investigation in a memorandum, which she sent to Mike Lehman, Defendant's chief financial officer. (Id., Statement of Undisputed Material Facts ¶ 24; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 24.) Denholm informed Lehman that the investigation had led her to conclude that Plaintiff had demonstrated "gross misjudgment/misconduct," and Denholm had reversed the accruals. (Id., Statement of Undisputed Material Facts ¶ 24, Ex. A--7 [10/22/01 E-mail]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 24.) Lehman subsequently requested that Defendant's internal audit department perform another investigation. (Id., Statement of Undisputed Material Facts ¶ 25; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 25.) Defendant's internal audit department's investigation began after Plaintiff returned from his leave of absence. (Id.)

Defendant asserts that it assigned Paul Wear, an auditor in Defendant's internal audit department to investigate Plaintiff's revenue and liability accruals. (Id., Statement of Undisputed Material Facts ¶ 32; admitted in relevant part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 32.) Plaintiff underscores that Wear conducted an investigation, not an audit. (Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 32.) During the course of his investigation, Wear reviewed documentation relating to the accruals at issue and interviewed Plaintiff, Osborne, Brasier, two SES Americas executives, and several employees who reported to Plaintiff during the time Plaintiff booked the accruals. (Def.'s Br., Statement of Undisputed Material Facts ¶¶ 33--35; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 33--35.) As a result of his investigation, Wear concluded that Plaintiff had not adequately performed his fiduciary responsibilities, and had exercised poor judgment regarding the accruals. (Id., Statement of Undisputed Material Facts ¶ 36, Ex. A--6 at 35--36 [Dep. of Paul Wear]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 36.) More specifically, Wear found that:

[the] [r]evenue accruals were made based on unreliable, and incorrect information. Accrual entries that should have been reversed automatically were not. Independent review of supporting documentation prior to booking the journal [sic] was not performed which is a violation of a fundamental internal control process whereby no one individual has complete control over a transaction permitting errors to go undetected. [Wear] found no evidence that [Plaintiff] gained personally from the error. [Wear] do[es] see that there was a lack of attention to detail and a failure of a manager to properly execute their [sic] fiduciary responsibility. (Id., Ex. A--12 [1/16/02 Accrued Revenue Investigation Notes]; Pl.'s Resp., Ex. U [1/16/02 Accrued Revenue Investigation Notes].) Wear conveyed his beliefs that Plaintiff had not adequately fulfilled his fiduciary duties to Denholm and Lori Walker, a human resources representative for Defendant. (Def.'s Br., Statement of Undisputed Material Facts ¶ 38; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 38.)

d. Termination of Plaintiff's Employment

Based on her own investigation and Wear's investigation, Denholm concluded that Plaintiff had failed to carry out his job responsibilities and the accruals Plaintiff booked were inaccurate and unsupported. (Id., Statement of Undisputed Material Facts ¶ 38; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 38.) Denholm therefore concluded that Plaintiff's employment should be terminated. (Id., Statement of Undisputed Material Facts ¶ 39; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 39.)

On January 29, 2002, Denholm and Walker met with Plaintiff to inform him that his employment would be terminated effective February 12, 2002. (Id., Statement of Undisputed Material Facts ¶ 40; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 40.) During the meeting, Plaintiff requested another opportunity to provide Denholm with information regarding the accruals at issue, and an explanation therefor. (Id., Statement of Undisputed Material Facts ¶ 41; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 41.) On February 11, 2002, Denholm and Mike Hampton, another of Defendant's employees, met with Plaintiff and gave him an opportunity to present information regarding the accruals. (Id., Statement of Undisputed Material Facts ¶¶ 42, 43; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 42, 43.) At the end of the meeting, Denholm concluded that Plaintiff had failed: (1) to substantiate adequately the accruals in question, and (2) to explain how he calculated the accruals and why the he booked the accruals on the SES Americas financial statements. (Id., Statement of Undisputed Material Facts ¶ 43; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 43.) Consequently, Denholm notified Plaintiff that her decision to terminate his employment stood. (Id., Statement of Undisputed Material Facts ¶ 44; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 44.)

Because of the approximately thirteen and one-half million dollars in accrued revenues and two million dollars in accrued liabilities Plaintiff caused to be reflected on SES Americas's financial statements for the fiscal year 2001, Defendant had to restate the 2001 financial statements. (Id., Statement of Undisputed Material Facts ¶ 45; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 45.) The restatement of SES Americas's 2001 financial statements to account for the accruals at issue reflected a reduction in SES Americas's revenues of twelve million two hundred thousand dollars. (Id., Statement of Undisputed Material Facts ¶ 46; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 46.) Due to the restatement of SES Americas's 2001 financials statements, certain of Defendant's executive employees who were compensated based in part upon SES revenue amounts were required to refund to Defendant several thousand dollars that they had received as incentive compensation in 2001. (Id., Statement of Undisputed Material Facts ¶ 47; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 47.)

2. Procedural History

On or about September 30, 2002, Plaintiff filed a charge of age and religious discrimination with the Equal Employment Opportunity Commission ("EEOC"), in satisfaction of the requirements under the ADEA and Title VII. (Compl. ¶ 11.) On or about November 2, 2002, Plaintiff amended his charge with the EEOC to include disability discrimination, in satisfaction of the requirements under the ADA. (Id.) On or about July 1, 2003, the EEOC issued Plaintiff a Dismissal and Notice of rights. (Id. ¶ 12.) Plaintiff timely filed a complaint in Broomfield County District Court.

On October 20, 2003, the Broomfield District Court ordered Plaintiff to complete and file service of process. (Order [Case No. 03cv0223] [filed Dec. 8, 2003].) Plaintiff failed to comply with the court's order. (Id.) On December 8, 2003, the Broomfield District Court dismissed Plaintiff's case for failure to prosecute. (Id.) On December 12, 2003, Plaintiff moved the court to vacate its order of dismissal. (Pl.'s Mot. to Vacate Order of Dismissal [filed Dec. 12, 2003].) On April 5, 2004, the Broomfield District Court vacated its order of dismissal. (Order [filed April 5, 2004].) On May 17, 2004, pursuant to 28 U.S.C. §§ 1331, 1343, and 1441, Defendant removed this action to this court, due to this court's original jurisdiction premised upon federal question. (Notice of Removal of Action [filed May 17, 2004].) On May 24, 2004, Defendant filed a motion for extension of time to answer Plaintiff's complaint - the first of myriad motions for extension of time in this case.*fn1 (Unopposed Mot. for Extension of Time to Respond to Compl. [filed May 25, 2004].) On May 25, 2004, Magistrate Judge O. Edward Schlatter granted Defendant's motion and set a due date of May 31, 2004 for Defendant's answer. On June 1, 2004, Defendant filed an answer to Plaintiff's complaint. (Answer [filed June 1, 2004].)

On March 23, 2005, Defendant filed a motion for summary judgment. (Def.'s Br.) Defendant argues that Plaintiff cannot maintain his claims because Plaintiff: (1) cannot establish the requisite prima facie cases for disability discrimination and retaliation under the FMLA, and (2) cannot demonstrate that its legitimate, nondiscriminatory reasons for terminating Plaintiff were pretextual with respect to all of Plaintiff's claims. (Def.'s Br. at 13--19.) On June 3, 2005, Plaintiff filed a response to Plaintiff's motion. (Pl.'s Resp.) On July 26, 2005, Defendant filed a reply to its motion. (Def.'s Reply.) This matter is fully briefed.

ANALYSIS

1. Standard of Review

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (2005); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248--50 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, 36 F.3d at 1518 (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see Fed. R. Civ. P. 56(e) (2005). A fact in dispute is "material" if it might affect the outcome of the suit under the governing law; the dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997) (citing Anderson, 477 U.S. at 248). The court may consider only admissible ...


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