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Vinarov v. Motorola

March 26, 2008


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Plaintiff Valery Vinarov ("Vinarov") had been working for Defendant Motorola, Inc. ("Motorola") for eight years when he was terminated, allegedly due to Motorola's poor business performance. In filing this lawsuit Vinarov claims Motorola discriminated against him because of his age, national origin, and religion. Vinarov also contends that he is owed overtime pay Motorola failed to pay him from 1995 to 1999 and that Motorola was unjustly enriched when it failed to pay him for work that he did on a project that he alleges was outside the scope of his original job duties. Both Motorola and Vinarov move the Court for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c); Motorola seeks summary judgment as to all counts of Vinerov's Second Amended Complaint and Vinerov seeks summary judgment as to only Count I, alleging age discrimination. For the following reasons, the Court denies both motions for summary judgment as to Count I and grants Motorola's motion as to Counts II-IV.

In response to Vinarov's motion for summary judgment, Motorola also filed a motion for Rule 11 sanctions, submitting that Vinarov improperly argues that the production of evidence of discrimination compels judgment in his favor as a matter of law. The Court agrees that Vinarov's motion is without merit, but the Court declines to award sanctions. The arguments that Motorola made in response to Vinarov's motion were those it raised in its own motion. Accordingly, sanctions are not appropriate. Vinarov additionally requested leave to file an amended declaration in opposition to Motorola's motion for summary judgment. For reasons addressed below, this motion is moot.


Vinarov is Jewish and though born in Ukraine, he considers himself of Russian national origin.*fn1 At age 46, in March 1995, Motorola hired Vinarov to be Project Manager in its Universal Network Operations group.*fn2 At that time Vinarov entered into an employment agreement with Motorola which provided, in part,

In consideration of my employment, or continued employment by Motorola, Inc. or its subsidiaries (referred to separately or together as "Motorola") and the salary or wages paid to me, I understand and agree to the following provisions for protection of Motorola property rights:

4. To assign and I hereby assign to Motorola as its exclusive property the entire right, title and interest in all my inventions, innovations, or ideas developed or conceived by me solely, or jointly with others, at any time during the term of my employment and which inventions, innovations, or ideas relate to the actual or anticipated business activities of Motorola, or result from, or are suggested by, work which I do for Motorola.

5. To make and maintain written records of all inventions, innovations, or ideas referred to in paragraph 4 above and to submit promptly such records, and supplemental oral disclosures, to designated representatives of Motorola.


This agreement may not be modified except in writing with approval of an officer of Motorola.*fn3

In 1997, Vinarov began managing a project in the Code Division Multiple Access business unit under Keith Ten Brook ("Ten Brook").*fn4 From 1996 to 2003, with the exception of a few brief periods of time, Vinarov worked as a Project Manager under Ten Brook's general supervision.*fn5 Throughout that time, Vinarov received grade-level promotions, moving from level E09 to E12 by 1999.*fn6 In both 1999 and in 2001 NAT underwent cutbacks resulting in two reductions in force, or what Motorola calls their Involuntary Severance Program ("ISP"), but Vinarov was not selected for either.

From 1999 through 2004, employees and managers participated in what was called a Personal Commitment ("PC") process to gauge employees' performances and facilitate communication between employees and managers.*fn7 Pursuant to the PC process, employees also reviewed themselves in quarterly "checkpoints" to assess progress and goals.*fn8 As part of that program, employees self-assessed their performance and their managers rated them for the review year.*fn9 The PC documents described specific assignments, goals, and expectations for each employee.*fn10 Through this program Vinarov received several evaluations from Ten Brook and other co-workers.

In 2001, Ten Brook rated Vinarov "meets expectation" and at the end of the review year Ten Brook noted that Vinarov required "additional work" and instructed Vinarov to read and implement recommendations from a book about effective management.*fn11 In this same evaluation Ten Brook stated that Vinarov was "strongly driven" but could "improve his effectiveness with improved listening" and attention to detail.*fn12 In March 2002, Brian Hughes ("Hughes"), Vinarov's co-worker, provided feedback regarding Vinerov's performance for that year.*fn13 Hughes' report stated Vinarov needed to improve his rapport building skills with individuals because he had an aggressive personality.*fn14 Hughes noted that Vinerov should work on getting co-operative agreement as opposed to forcing agendas.*fn15 Following this "checkpoint," Vinerov had an action plan for the remainder of the year, which consisted of listening without interruption and seeking to understand before being understood.*fn16

In what appears to be Vinerov's next checkpoint evaluation, signed by Vinerov and Ten Brook on July 9, 2002, Hughes stated that Vinerov was no longer in the "needs improvement" status.*fn17 The next evaluation, signed by Vinerov and Ten Brook on October 7, 2002, Hughes again stated with respect to "Behavior 1" Vinarov was "demonstrating" and no longer in the "needs improvement" status.*fn18 Another co-worker, Yuda Luz ("Luz"), also provided feedback that Vinerov was doing his job "the best way, with focusing on the opportunities for [her] team and others."*fn19

In 2002, Ten Brook became Senior Director of Motorola's Networks Advanced Technologies organization ("NAT"). At this time Ten Brook was responsible for conducting performance evaluations for employees who reported to him and he selected employees to separate pursuant to the ISPs.*fn20 Sometime between August and September of 2002, in a meeting with several Motorola managers, including Ten Brook, Vinarov and another Project Manager, Gary Jackson, were selected to be terminated pursuant to an ISP.*fn21 Vinarov's exit date was scheduled for September 2002 but in November 2002, because of work available in another group, Ten Brook transferred Vinarov to a new division to work under Renganath Puranik ("Puranik").*fn22 From November to March 2003, Vinarov worked under Puranik's supervision, the purpose of which was to see if Vinarov could work in some other part of the organization.*fn23

On November 19, 2002, Motorola held a Relative Performance Assessment meeting where approximately 18 managers participated and rated Vinarov.*fn24 Vinarov received a rating of "least effective."*fn25 At Vinarov's annual performance review, on January 10, 2003, Ten Brook informed Vinarov of his rating of "least effective."*fn26 At this time, Ten Brook also officially notified Vinarov that he was placed on the list for participation in the ISP.*fn27 Motorola's position was that it terminated Vinarov because the company was experiencing financial losses that required downsizing, specifically for the year 2002.*fn28 Ten Brook also told Vinarov he was terminated, not because of poor results or a lack of accomplishments, but due to his behavior.*fn29 Vinarov disputed this assessment and requested that Ten Brook further explain his evaluation. Approximately two weeks later Ten Brook provided Vinarov with more detail, stating that the behaviors at issue were Vinarov's ability to manage meetings, work effectively with team members, and energize people to achieve project goals.*fn30 Vinarov disagreed with his "least effective" rating and solicited feedback from two colleagues, Luz and Hughes.*fn31 Their feedback was included in Vinarov's final evaluation.

On January 14, 2003, Vinarov and his manager at the time, Puranik, signed Vinarov's final evaluation. This evaluation provided that Vinarov had spoken with his manager and the document reflected their agreement that, in summary, "due to incompetent Program Management, developed schedules were not substantiated...[but Vinarov] was able to successfully resolve all of the above issues, remove 3 month delay and put program on schedule within budget constraints."*fn32 The January 2003 evaluation also provided that the three behaviors Vinarov was asked to work on were demonstrated.*fn33 The management comments for this evaluation, however, stated that Vinarov needed to "strengthen his behavior skills in terms of "working more effectively with other team members ... [and] energiz[ing] people around to achieve [sic] project goals."*fn34 Additional comments were that Vinarov met many predefined goals, but did not consistently meet all performance expectations, minimum job requirements were accomplished but some progress was still needed, and noted that he may require "focused development plans or direction in order to manage either [his] results and/or behaviors."*fn35 Under the "manager's comments" portion of the evaluation, it was noted that Vinarov needed "improvement in the behavior skills to make an effective impact on work partners and other managers."*fn36 Finally, a hand-written note by Luz stated Vinarov should be rated "ES," meaning Vinarov exceeded some predefined goals, and another note by Hughes stated that Vinarov deserved a rating of "solidly effective" on his PC for 2002.*fn37

At age 54, on March 28, 2003, Vinarov was terminated.*fn38 Certain projects Vinarov had worked on were transferred to other Motorola Project Managers, namely Mark Wallace, Jill Engholm, Sandra Ficke-Bradford, and Alan Zhao.*fn39 ...

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