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Sherman v. Motorola Solutions, Inc.

United States District Court, D. Colorado

August 16, 2017




         Plaintiff Jeffrey Sherman (“Sherman”) initiated this action on June 23, 2016 alleging generally that Defendant Motorola Solutions, Inc. (“Motorola”), his former employer, subjected him to discrimination and retaliation based on his age in violation of the Age Discrimination in Employment Act (“ADEA”) and the Colorado Anti-Discrimination Act (“CADA”). Motorola filed an Answer in response to the Complaint and the case proceeded to discovery.

         Motorola timely filed a motion for summary judgment arguing Sherman fails to demonstrate material factual issues concerning whether he was constructively discharged; whether Sherman's complaint of discrimination caused his placement on a performance improvement plan; and whether Sherman can show his age was a factor in any failure to promote. Sherman responded that (1) the evidence demonstrates he suffered intolerable conditions at work; (2) while Motorola may have determined before his discrimination complaint to place Sherman on a PIP, it made the PIP tasks more difficult to achieve after the complaint; and (3) he was not promoted despite his qualifications, but younger, less qualified employees were promoted. Motorola replies that Sherman failed to raise genuine disputes with the evidence it has presented and/or ignored certain evidence altogether and, thus, Motorola is entitled to summary judgment on Sherman's discrimination and retaliation claims.

         Nine days after Motorola filed its reply brief, Sherman filed a motion asking the Court to strike portions of the reply brief, including “all unsupported factual statements and new factual assertions.” ECF No. 60. Motorola responded that Sherman was “mistaken” that any factual statements were either “unsupported” or “new.” Briefing on the motion to strike completed on July 10, 2017.

         Finding insufficient grounds to “strike, ” the Court will deny Sherman's motion to strike portions of Motorola's reply brief and certain supporting evidence but, alternatively, I will consider the evidence (or lack thereof) and Sherman's objections, as applicable, in the analysis of Motorola's motion for summary judgment. Furthermore, the Court concludes Sherman raises genuine issues of material fact as to whether he was constructively discharged and whether Motorola retaliated against him based on his age; however, the Court finds it lacks jurisdiction to hear Sherman's failure to promote claims. Therefore, the Court will grant in part and deny in part the motion for summary judgment, and dismiss Sherman's claims for failure to promote.


         The Court makes the following findings of fact viewed in the light most favorable to Sherman, who is the non-moving party in this matter.[1]

         1. Sherman was employed by Motorola from October 1, 1977 to April 24, 2015. At the time he left Motorola, Sherman was classified as a Senior Systems Engineer, he was sixty years old, and he was the oldest member of his engineering team.

         2. Until 2005, Sherman served Motorola's “Territory 7, ” which then included Arkansas, Louisiana, Nevada, Utah, and Arizona, and he worked on large projects, both in terms of project costs and complexity, in each of those states. Affidavit of Jeffrey D. Sherman, May 9, 2017 (“Sherman Aff.”) ¶ 14. In 2005, as part of a company reorganization, Arkansas and Louisiana were moved from Territory 7 to Territory 6, and the responsibilities of Nevada, Utah, and Arizona were given to the Phoenix engineering office. Id. Thus, Sherman was no longer responsible for his territories and projects, and he was assigned to do the only projects available in Colorado, which were considered “small.” Id.

         3. During the relevant time period, the following individuals supervised and/or managed Sherman at Motorola:

Engineering Supervisor:

Phillip Raymond

Larry Mabry


Jan 2015-Apr 2015

Group Supervisor:

Bruce Dykstra

Adam Quintana

2005-May 2014

May 2014-Apr 2015

Group Lead:

Marty Davis

early 2014-Apr 2015


Jeffrey Sherman

Sherman Aff. ¶¶ 4, 6, 14; see also Deposition of Jeffrey D. Sherman, November 9, 2016 (“Sherman Dep.”) at 39: 12-17.

         4. Mark Shaklee and Rebecca Zwang were the Motorola HR professionals who assisted in preparing a Performance Improvement Plan (“PIP”) given to Sherman on April 22, 2015. See April 21, 2015 Email from Quintana to Sherman, ECF No. 43-5.

         5. Marty McCoy was the “main contact” between Motorola and its customer, Wyolink, for whom Sherman performed engineering work for approximately three years between 2012 and 2015. Sherman Aff. ¶ 6.

         6. Sherman testified at his deposition that certain of these individuals did not discriminate against him based on his layperson's understanding of age discrimination, including Phillip Raymond, Larry Mabry, Bruce Dykstra, Martin Davis, Marty McCoy, Mark Shaklee, and Rebecca Zwang. Sherman Dep. 46: 11 - 47: 13.

         7. Sherman also testified that Dykstra did nothing to cause Sherman to question Dykstra's honesty or integrity (id. at 77: 23 - 78: 2), and he was “one of the best managers [Sherman had] ever had” (id. at 360: 24 - 361: 2).

         8. Dykstra was responsible for preparing Sherman's annual performance evaluations while he was Sherman's direct supervisor, from 2005 until 2014, at which time Davis became the “Group Lead”; thereafter, Davis prepared Sherman's performance evaluation. Deposition of Bruce Dykstra, February 2, 2017 (“Dykstra Dep.”), 14: 25 - 15: 4; 15: 24 - 16: 6.

         9. Sherman's overall performance rating throughout his employment was “valued performer” or “meets expectations.” Sherman Dep. 162: 2-14. He consistently received annual salary increases based on merit and numerous awards for various projects he worked on, as well as recognition awards, called “high-fives, ” from his coworkers. Sherman Aff. ¶ 3. Until 2015, Sherman never received any written discipline of any kind during his thirty-seven years at Motorola. Id.

         10. Dykstra testified that Sherman was always one of the lowest-ranked engineers on his team with respect to performance (Dykstra Dep. 35: 24 - 36: 2), but stated that Sherman met the expectations Dykstra had set for him (id. at 89: 12-19). Dykstra explained that he “tended to be easier on people” (id. at 174: 5-11), and that it was his philosophy in supervising people to try to encourage them with positive reinforcement and not to focus on their performance problems (id. at 178: 3-13).

         11. Dykstra received complaints from Sherman's co-workers concerning Sherman's performance, including complaints from Adam Schwartz, Lisa Mansuatti, and Barb May. Id. at 57: 18-22; 244: 14 - 245: 13.

         12. In or about 2013 (id. at 180: 14-19), Dykstra traveled to Boulder for a meeting with Sherman at which he

sat down with Jeff and said, some things have got to change here. This is not good. We can't keep going down this road. And, again, I - I didn't want to have to fire Jeff. I mean, certainly, it was always my desire, unless there were - you know, I hoped Jeff could retire from Motorola, and he did. So I was happy about that. But, yeah. That was the one circumstance that I recall that I had to take some pretty immediate action.

Id. at 180: 3-13.

         13. As set forth above, starting in 2014, Plaintiff reported directly to the Group Lead, Martin Davis. Sherman testified that Davis did nothing to cause Sherman to question Davis' honesty or integrity (id. at 77: 16-22), and when asked what type of supervisor Davis was, Sherman testified “I don't have any complaints about him.” Id. at 361: 5-7.

         14. Davis first met Sherman in 1998 when he worked as an intern for Motorola, then again in 2000 when Davis returned to Colorado as a systems engineer. Deposition of Martin Davis, November 22, 2016 (“Davis Dep.”) 11: 13-22. Based on his participation in engineering design reviews with Sherman during this period, Davis considered Sherman to be a “competent engineer.” Id. 12: 16-22.

         15. When Davis, as Group Leader, was asked to rank the engineers he supervised “not” for use in a performance analysis, but “to figure out or to evaluate things that maybe other people had done to improve performance, ” he rated Sherman as the “weakest” in his group. Davis Dep. 54: 8 - 56:

12. Dykstra was also involved in preparing this ranking and confirmed that the ranking indicated nothing about whether the employees were meeting the expectations of their jobs but, rather, who was contributing the most and the least to their engineering teams. Dykstra Dep. 82: 12-25; 85: 2-6.

         16. During the time Sherman reported to him, Davis received complaints from Project Managers Barb May and Steve Langworthy that Sherman “was not doing up to their standards of work.” Davis Dep. 29: 4-18.

         17. Davis agrees that the statement, “this project could have been done better, ” is an opinion rather than an indication that the engineer on the project did something wrong. Id. at 14: 5-11. Davis considered “many” of May's and Langworthy's complaints to be “differences of opinion.” Id. at 29: 19-22.

         18. On January 8, 2015, Davis performed the 2014 performance evaluation for Sherman at which he opined that Sherman was a competent engineer and met expectations. Id. 15: 1-8. On the evaluation form, Davis wrote that “Jeff was a tremendous asset for the T7 team, ” and he “has performed to expectations during the 2014 year.” ECF No. 49-14.

         19. The WyoLink project was a large project Motorola had performed for the State of Wyoming for “quite a long time.” Deposition of Larry Mabry, January 31, 2017 (“Mabry Dep.”) 30: 14-20.

         20. Martin (“Marty”) McCoy was the State of Wyoming employee in charge of the WyoLink project. Sherman Dep. 241: 22 - 242:1.

         21. In 2012, Dykstra asked Sherman what he would like to work on and stated that positions on some projects were available in New Mexico. Sherman Aff. ¶ 14. Sherman asked Dykstra whether positions were available closer to Sherman's home in Lyons, Colorado, and Dykstra offered Sherman the lead engineer position for the WyoLink project in Wyoming, which was similar to the work Sherman had been performing and was closer to Sherman's home. Id.; see also Sherman Dep. 241: 14-23.

         22. Sherman worked only on “post-sale” aspects of the WyoLink project and reported only to the Motorola Project Manager, Neil Clatworthy, not to the customer, Marty McCoy. Sherman never worked directly with McCoy. Any requests for information from McCoy were channeled through Clatworthy. Sherman never called McCoy directly, and McCoy never called Sherman. Any emails Sherman sent to McCoy went through Clatworthy first. Sherman never worked with anyone directly from the customer's side but only with Clatworthy and the Motorola shop, and he never designed anything “pre-sale” for WyoLink because it was already finished. Sherman Aff. ¶ 12.

         23. Shortly before June 2014, 30-year-old Adam Quintana became Sherman's engineering group's supervisor. At Sherman's first meeting with Quintana in June 2014, Quintana appeared to Sherman to be cold, hostile, and demeaning. Id. ¶ 4.

         24. At or around that same time, Sherman asked Davis, his immediate supervisor, to be removed from the WyoLink project due to McCoy's “repeated” changes to designs previously agreed-upon, which required Sherman to reproduce his work and made it appear as if Sherman had made mistakes. Id. ¶ 6; Davis Dep. 42: 19 - 43: 25.

         25. Davis mentioned the request to Quintana, then “started weaning [Sherman] off the WyoLink project and started bringing Rifaah [Alkhamis], the other engineer, trying to bring him up to speed and get him as the new engineer up there.” Davis Dep. 45: 21-25, 46: 1-4; see also Quintana Dep. 82: 11-21. After Sherman's request, no new projects relating to WyoLink were assigned to Sherman. Davis Dep. 46: 22-25, 47: 1-3.

         26. In or about October 2014, Sherman told Davis that he believed Quintana was going to fire him based on Quintana's “expectations, ” which were higher than those Dykstra had placed on him. Davis Dep. 31: 9-14, 32: 4-7.

         27. In late 2014, due to “problems” he had experienced with Sherman, McCoy asked Motorola to remove Sherman as lead engineer for the WyoLink Project and replace him with a different engineer. Declaration of Martin McCoy, April 11, 2017 (“McCoy Decl.”) ¶ 3, ECF No. 43-9.

         28. At no time was Sherman told by anyone at Motorola, or by McCoy on behalf of WyoLink, that there had been any issues with his performance. Sherman Aff. ¶ 6. Moreover, Sherman was never informed of any reason why McCoy, with whom Sherman had little, if any, direct contact, would want him removed from the project. Id. at ¶12.

         29. In his estimation, Davis believed Sherman “did fine” with his work on the WyoLink Project in 2014. Davis Dep. 70: 23-25.

         30. Throughout his career at Motorola, Sherman was aware of one other situation in which a client asked Motorola to remove an engineer from the client's project. Sherman Dep. 242: 5-13.

         31. In a February 2015 meeting (“PM planning session”), Quintana informed Sherman that McCoy had requested he be removed from the WyoLink project. Id. at 243: 16 - 244: 8.

         32. Quintana also informed Sherman during the PM planning session of “issues [he] saw with [Sherman's] performance and the feedback [he] had received from other team members.” Deposition of Adam Quintana, November 18, 2016 (“Quintana ...

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