United States District Court, D. Colorado
JEFFREY D. SHERMAN, Plaintiff,
MOTOROLA SOLUTIONS, INC., Defendant.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
Court makes the following findings of fact viewed in the
light most favorable to Sherman, who is the non-moving party
in this matter.
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.
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.
During the relevant time period, the following individuals
supervised and/or managed Sherman at Motorola:
Jan 2015-Apr 2015
May 2014-Apr 2015
early 2014-Apr 2015
Sherman Aff. ¶¶ 4, 6, 14; see also
Deposition of Jeffrey D. Sherman, November 9, 2016
(“Sherman Dep.”) at 39: 12-17.
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.
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.
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.
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).
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.
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.
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).
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.
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
Id. at 180: 3-13.
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.
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.
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.
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.
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.
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
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.
Martin (“Marty”) McCoy was the State of Wyoming
employee in charge of the WyoLink project. Sherman Dep. 241:
22 - 242:1.
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.
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.
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.
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.
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.
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.
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.
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.
his estimation, Davis believed Sherman “did fine”
with his work on the WyoLink Project in 2014. Davis Dep. 70:
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:
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 -
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 ...