The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Babajide M. Akinbode ("Akinbode") brings suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq., 42 U.S.C. § 1981 and the Age Discrimination in Employment Act alleging that Motorola, Inc. ("Motorola") harassed and discriminated against him on the basis of age, race, color and national origin. Akinbode also brings breach of contract and promissory estoppel claims stemming from Motorola's progressive discipline policy. Motorola moves for summary judgment on all of Akinbode's claims. For the reasons set forth below, Motorola's motion for summary judgment is granted.
Akinbode is a 46-year-old Nigerian and is African American. Pltf. 56.1 Resp. at ¶ 4.*fn1 Motorola hired Akinbode in April 2000 as a Systems Engineer, grade E07. Pltf. 56.1 Resp. at ¶ 8. As a Systems Engineer, Akinbode was responsible for network management, design, installation, configuration, and development. Id. Communicating clearly is an important part of the Systems Engineer position. Pltf. 56.1 Resp. at ¶ 12. Ann Marie Johlie ("Johlie") hired Akinbode, was his only supervisor, and evaluated him on a yearly basis. Pltf. 56.1 Resp. at ¶ 9. Johlie was aware that Akinbode was Nigerian when she hired him. Id. Akinbode was hired on an at will basis and Motorola could terminate his employment at any time. Pltf. 56.1 Resp. at ¶ 50.
When Akinbode was hired, Motorola gave him copies of its Progressive Discipline Policy, its Appropriate Use of Computer Resources Policy called the SOP E-62 ("E-62 policy"), and its Code of Business Conduct. Pltf. 56.1 Resp. at ¶¶ 17, 21, 49. Akinbode reviewed Motorola's Progressive Discipline Policy frequently. Pltf. 56.1 Resp. at ¶ 49. According to Akinbode, there was nothing unclear or vague about the policy. Id. The policy sets forth Motorola's process for dealing with employees who violate policies, whose actions are disruptive to a normal business environment, or whose conduct may have a negative impact on the employment relationship or Motorola's reputation and standing in the community. Def. Ex. R. The policy categorizes infractions into three classes and sets forth the discipline that is "normally" given to employees specific to the classes of infractions. Id. Written warnings are "normally" given for Class II infractions. Id. Class II infractions are described as follows:
Examples of Class II infractions include (but are not limited to): Inappropriate conduct; disregard of safe work procedures; making offensive remarks, including remarks based upon an individual's race, color, religion, sex, national origin, age, disability, sexual orientation or veteran's status; using abuse, profane of sexually graphic language; failure to secure Motorola's information under Motorola's Protection of Proprietary Information Standard Operating Procedure; misuse of Motorola resources or equipment (e.g. computers, telephone, pager, email, internet, software) under Standard Operating Procedure E-62. Class infractions will remain active for the duration of employment. Any subsequent Final Written Warning, of any nature, may result in termination of employment.
Akinbode did not receive a written warning from Motorola regarding any of the conduct that Motorola now claims is the reason for his firing prior to his termination. Def. 56.1 Resp. at ¶ 60. The parties dispute whether Motorola was obligated to give Akinbode a "Final Written Warning" for his first infraction. Motorola denies that it had such a duty citing the following language from the Policy:
Each infraction results in a determination of discipline level, based on its seriousness, previous discipline and a review of the circumstances of the infraction. This determination is within the discretion of management and human resources, and may include an analysis of the employee's entire record, including attendance and performance. Each situation is given individual consideration and depending on the specific circumstances may deviate from the examples set forth in this policy. For example, a Class II infraction may be handled as a Class III or, a record or pattern of previous Class I infractions may result in a decision to discipline pursuant to the steps set forth for Class II. Pltf. 56.1 Resp. at ¶ 37.
Motorola's Progressive Discipline Policy also states: This policy does not constitute an employment contract or implied promise of any kind. The terms of this policy may be modified or eliminated by the company at any time with or without notice.
Pltf. 56.1 Resp. at ¶ 48.
Akinbode was required to abide by the provisions of the E-62 policy as an ongoing condition of employment. Pltf. 56.1 Resp. at ¶ 17. Failure to abide by the E-62 policy could lead to termination of employment. Id. Each time Akinbode turned on his Motorola computer, a message appeared on the screen warning Akinbode that his computer usage must comply with the provisions of the E-62 policy. Pltf. 56.1 Resp. at ¶ 18. By completing the log-in process, Akinbode acknowledged and consented to the provisions of the E-62 policy. Id. The E-62 policy sets forth the acceptable uses of Motorola's computer resources and prohibits usage that does not accomplish Motorola's goals and initiatives or that interferes with its employees' job responsibilities. Id. Examples of inappropriate use of Motorola's computer resources included communicating information that could be perceived as official Motorola positions or endorsements without its approval and participating or engaging in any activities that violate the law, the Code of Business Conduct, key beliefs, or Motorola policies. Pltf. 56.1 Resp. at ¶ 20.
Akinbode was also required to abide by Motorola's Code of Business Conduct as an ongoing condition of employment. Pltf. 56.1 Resp. at ¶ 21. Failure to comply with the Code could lead to termination of employment. Id. According to the Code, an employee's outside activities must not harm job performance and the Code prohibits Motorola employees from using its name, property or equipment for the support of political activities. Pltf. 56.1 Resp. at ¶ 22. Performing non-Motorola related work during business hours violates the provisions of the Business Code. Id.
Another policy of Motorola's in effect at the time was its Safe and Respectful Workplace policy which prohibits harassment and establishes a reporting procedure. Pltf. 56.1 Resp. at ¶ 16. It states that an individual who feels harassed should report it to his "supervisor, department management, Human Resource representative, the local Human Resources Compliance representative or a representative of the law Department." Pltf. 56.1 Resp. at ¶ 16.
Johlie evaluated Akinbode from 2000 to 2004, prepared performance evaluations, and ranked Akinbode based upon his overall performance. Def. 56.1 Resp. at ¶¶ 52, 53, 54, 55. Motorola considers individuals for promotion when they demonstrate that they have the skills and behaviors necessary to perform at the next level. Pltf. 56.1 Resp. at ¶ 10.*fn2 An individual's performance evaluation and ranking are integral in assessing whether that individual should be promoted. Pltf. 56.1 Resp. at ¶ 11. Typically, individuals who receive promotions have been rated either "excellent" or "outstanding" in their end of year evaluations. Id.
Johlie evaluated Akinbode's performance in 2000 and 2001. Her overall evaluation of Akinbode's performance in 2000 was that he "meets expectations." Def. 56.1 Resp. at ¶ 52. The following year, Johlie evaluated Akinbode's performance as "meets expectations" and Johlie stated that Akinbode "works very hard, is dedicated but sometimes looks (sic) focus on tasks that need to be finish (sic) by certain date." Def. 56.1 Resp. at ¶ 53. Johlie felt that many of Akinbode's project goals were completed on time as planned but that he "[N]eeds help prioritizing tasks." Id.
In 2002, Johlie evaluated Akinbode and concluded that he was "good at completing assigned activities on time" and that he "achieved critical dates on software turnovers." Def. 56.1 Resp. at ¶ 54. Akinbode had "taken on a great variety of work" and his "role as a lab manager would prepare him for bigger roles in the future." Id. Johlie felt that he would "go out of his way to help others," and that Akinbode "built good relationships". Def. 56.1 Resp. at ¶ 54. Johlie's evaluation also discussed concentrating on executing results and due dates, and establishing specific goals and work plans. Pltf. 56.1 Resp. at ¶ 13.*fn3 Akinbode was to take time management and communication classes by October, 30, 2002. Id. Johlie also asked Akinbode to meet on weekly basis with a more senior employee to prioritize his tasks due to his time management problems. Id. Johlie thanked him for his hard work and ranked him at the "meet expectations" level. Def. 56.1 Resp. at ¶ 54.
In 2003, however, Johlie ranked Akinbode as "Least Effective" ranking-- the lowest ranking individual in his group. Pltf. 56.1 Resp. at ¶ 14.*fn4 Akinbode was spending time on "unimportant" things and needed to prioritize his tasks and improve his time management skills. Id. Johlie noted that "it takes considerable oversight from management to keep [Akinbode] focused on what's most important" and that Akinbode needed to work more independently. Id. Items had to be re-planned because Akinbode missed target dates and Akinbode had to be removed from attending weekly PC meeting due to adverse communication issues.*fn5 Id. Several people avoided working with Akinbode due to communication issues. Id. CISCO, an outside vendor, requested that some of Akinbode's cases should be updated by other employees. Id. The 2003 evaluation further states:
"[W]hen verbally discussing a solution with [Akinbode], it has been noted that he will describe a fix, but when questioned about it, he will change his story...causing people to not understand the truth in the matter because it seems he is saying what others want to hear." Id.
In 2004, Johlie prepared her fourth yearly evaluation of Akinbode's performance. Def. 56.1 Resp. at ¶ 55. Akinbode's progress related to two of his business goals was ranked as "poor" and his overall ranking was "needs improvement." Pltf. 56.1 Resp. at ¶ 15; Def. Ex. G. Johlie noted that "external groups continue to experience communication issues" and that while Akinbode "has taken numerous communication classes, the situation is improving only slightly" Id. She also stated that Akinbode "may be distracted by activities that are not relevant to his job. He should minimize non-work related activities while he is at work and focus on doing this job with high quality." Id. The parties dispute that Akinbode did all that he was asked to do and performed as he was directed. Def. 56.1 Resp. at ¶ 56.
Johlie believed that Akinbode's accent was a problem. Def. 56.1 Resp. at ¶ 66. Johlie told Akinbode on two to three occasions, the first of which occurred during a performance evaluation, "you don't speak like an American and people have a hard time picking up your accent." Pltf. 56.1 Resp. at ¶ 42. David Gwo ("Gwo"), a co-employee, asked another whether he could understand Akinbode's accent, a comment that Akinbode characterizes as making fun of his accent to other employees. Def. 56.1 Resp. at ¶ 68. Gwo assisted with Akinbode's performance planning. Def. 56.1 Resp. at ¶ 67. The parties dispute whether Gwo's reports to Johlie hurt Akinbode's chances to receive desirable projects. Def. 56.1 Resp. at ¶ 67. Vince Patrizzi ("Patrizzi"), a co-employee, told Akinbode that he had a very strong accent and that he did not speak like an American during a performance feedback session. Pltf. 56.1 Resp. at ¶ 43. Neither Gwo nor Patrizzi had the authority to promote or discharge Akinbode. Id. Akinbode reported feeling harassed to Johlie once.
Pltf. 56.1 Resp. at ¶ 46. Akinbode did not complain about harassment to managers of his department, Human Resources, Motorola's Law Department, or anyone else at Motorola. Id. The parties dispute that Akinbode raised discrimination issues during every performance review. Def. 56.1 Resp. at ¶ 70.
During the fall of 2004, Johlie received several calls from a London-based Motorola employee alerting her that Akinbode might be communicating with foreign governments. Pltf. 56.1 Resp. at ¶ 23. Because communicating with foreign governments could be a violation of Motorola's Ethics Policy, Johlie contacted Motorola's Ethics Line to seek guidance. Id. Motorola's Ethics line recommended a forensic examination of Akinbode's computer. Pltf. 56.1 Resp. at ¶ 24. Accordingly, Motorola's Information Protection Services performed a forensic analysis on Akinbode's computer which consisted of an analysis of Akinbode's e-mail, internet history, and hard drive. Id. The forensic examination of Akinbode's computer found no evidence that Akinbode had represented Motorola inappropriately by contacting foreign governments. Pltf. 56.1 Resp. at ¶ 25. However, the examination found:
More than one gigabyte of non-work related files;
More than 1000 files pertaining to a company called Pacific Energy;
Evidence that Akinbode opened and worked on non-work related matters including the development of a ...