The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Prashant Rawal, a former employee of United Airlines, Inc., claims that United discriminated and retaliated against him based on his race, color, and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Before the court are (1) United's motion for summary judgment; (2) Rawal's motion to strike United's responses to his statement of additional facts; and (3) Rawal's motion to strike the declaration of Rudolph Stewart.
Rawal, a naturalized United States citizen, was born in India and raised and educated in the United States. (R. 65, Add'l Facts ¶1.) In January 2004 he applied for a position as a staff accountant at United. (R. 49, Facts ¶12.) Rawal is a certified public accountant with a master's degree (it's unclear in what field), and when he applied for the position he had more than eight years of accounting experience. (R. 65, Add'l Facts ¶2; R. 50, App'x, Tab 3C.) Craig Musa, manager of account compliance and analysis at United, interviewed and made the decision to hire Rawal. (R. 49, Facts ¶13.) Rawal was hired at grade-level "E," with a yearly salary of $48,000, in February 2004. (Id. ¶14; R. 50, Tab 3D.) He began his employ in United's shared services group, with Musa as his direct supervisor. (Id. ¶14.)
Part of Rawal's job was to perform "reconciliations" on accounts-that is, he would validate an account's reported expenses by verifying them with independent records. Rawal regularly reconciled established accounts at United, but he also discovered hundreds of other accounts, which he either reconciled or assigned "ownership" to. (R. 65, Add'l Facts ¶3.) In performing these and other tasks, Rawal sent approximately 100 e-mails each week. (Id. ¶4.)*fn1
Musa was charged with evaluating Rawal's performance; he wrote Rawal's mid-year and year-end performance reviews, including assessments of his performance in specific areas (like "communication" and "business acumen") and an overall rating. An employee could earn one of five ratings: outstanding (5); exceeds expectations (4); successful (3); needs improvement (2); or unsatisfactory (1). (R. 49, Facts ¶16.) If an employee's overall rating was "unsatisfactory" or "needs improvement," he would be placed on an "action plan" (also known as a "development plan"), with specific strategies to improve his performance. (R. 65, Add'l Facts ¶6.) And, typically, if an employee received a rating of "unsatisfactory" or "needs improvement," or if he was placed on an action plan, he would not be eligible for a promotion. (R. 49, Facts ¶55.)
Rawal's Job Performance in 2004
In Rawal's first mid-year review, dated August 27, 2004, Musa gave him an overall rating of "needs improvement." Among other things, Musa wrote that "[m]ost objectives are on track toward completion but are taking longer to accomplish than expected," and that, given his experience, Rawal needed to "take more initiative in managing his assignments" rather than "waiting for direction." (Id. ¶¶17,18; R. 50, Def't's App'x 3W at 2.) On September 14, 2004, Musa gave Rawal a twelve-step action plan. (R. 49, Facts ¶20.) A month later, Musa supported Rawal's decision to obtain a master's degree in business administration; he also tried to obtain tuition reimbursements for Rawal's classes. (Id. ¶15.)
In Rawal's 2004 annual review, Musa evaluated his job performance from February 9, 2004 through December 31, 2004. Again, Musa gave Rawal an overall rating of "needs improvement." (Id. ¶32.) In the specific components of the evaluation, Musa gave Rawal "successful" ratings in six areas: adaptability, business acumen, customer focus, decision making, innovation, and teamwork. He gave Rawal a "needs improvement" rating in three areas: performance management, communication, and planning. (Id.; R. 67, Pl.'s App'x Exh. 5.) Musa noted that Rawal "is a team player who willingly participates in activities beyond his normal work assignments," and that he "is flexible to changing priorities" and "takes advantage of opportunities to enhance his knowledge and skills." Musa also wrote that Rawal's "communications on project status have definitely improved and I would continue to encourage him to provide regular updates." But Musa wrote that Rawal "[did] not consistently meet established objectives on timeliness, quality/quantity and resource management," and that there had been "a number of situations in which the information [Rawal] provided/distributed contained inaccuracies." (R. 67, Pl.'s App'x Exh. 5.; R. 49, Facts ¶¶32-33.)
United has not highlighted much in the record to support Musa's claim that Rawal had an inconsistent record of meeting objectives, nor that he distributed inaccurate information in "a number of situations" in 2004. United points only to the fact that, of the many e-mails Rawal sent that year, two included acknowledgments that he had made mistakes. In an August 26, 2004 note to Musa and another United employee, Rawal apologized for needing to correct errors in a document he sent to them, explaining that he "was trying to rush." And, in a November 18, 2004 note, he apologized to four employees for mistakenly including cargo accounting and a duplicate account in his October variance report, noting that he would "try to do better next time." (R. 49, Facts ¶¶21, 22.) But the authenticity of Musa's impression, as reported in Rawal's annual review, is not in dispute. Rawal did not disagree with Musa's written comments; he disagreed with the overall rating of "needs improvement," which he believed did not adequately credit the work he had performed. (Id. ¶34.) Rawal thought-and still thinks-that Musa gave him the "needs improvement" rating to ensure that Rawal would stay in the shared services group. (Id. ¶35.)
Rawal did not receive his 2004 annual review until May 2005. (Id. ¶32.) Baffled by the overall rating, Rawal says he showed it to a business-school faculty member who mentioned that she knew someone on United's board of directors. Rawal says that he relayed the unnamed faculty-member's comments to Musa during a conversation about his annual review, and that he learned later that Musa had written that Rawal threatened to speak to Dipak Jain, an Indian member of United's board of directors. Rawal says he did not use Dipak Jain's name during the conversation-indeed, he did not learn that a man named Dipak Jain even was on the board of directors until much later. (R. 64, Resp. to Facts ¶5; R. 67, Exh. 2 at 203-04.) Musa denies this. In a declaration following his deposition, Musa states that, "I did not infer that [Rawal] was talking about Dipak Jain when he referenced a United Board member in a conversation with me, and I did not make any comments about Dipak Jain to [Rawal]. In fact, it was [Rawal] who brought up Dipak Jain's name in a conversation with me." (R.50, tab 8 at 2.)
In May, Rawal relayed his concerns about the annual review to Krista Fischer, who worked in United's human resources department. (R. 49, Facts ¶38.) Rawal did not tell Fischer that he thought Musa's actions were discriminatory. (Id.)
Around the same time-between April and June 2005-Rawal also began raising concerns about Musa's accounting practices, which Rawal believed could violate the SarbanesOxley Act. (R. 65, Add'l Facts ¶43.) Rawal became concerned because, he says, Musa ordered him to avoid selecting for monthly reconciliations accounts Musa controlled or of which he held "ownership," and forbade Rawal to "detail test" an account that Rawal had picked at random. (Id. ¶¶15, 43.) On June 28, 2005, Rawal sent an e-mail to Sara Fields, senior vice president at United, and Dave Wing, United's vice president controller, to express his concerns about the annual review, Musa's accounting practices, and his suspicion that Musa was retaliating against him for raising those concerns. (R. 49, Facts ¶39; R. 64, Resp. to Facts ¶39.)
Cynthia Starz, managing director for organizational strategies at United, along with Fischer, conducted an internal investigation of Rawal's annual review by interviewing Rawal and Musa and gathering the documents that Musa had considered. (R. 49, Facts ¶40.) On August 10, 2005, in a letter drafted by Fischer and signed by Starz, Rawal was informed that the internal review supported the "needs improvement" rating. (Id. ¶41; R. 64, Resp. to Facts ¶41). But because they concluded that Musa had not regularly communicated with Rawal about his action plan (which was put in place following his 2004 mid-year review), they created an addendum to his 2004 annual review that says, "the basis for the rating was not clearly and consistently communicated." (R. 49, Facts ¶42.)
In the same letter to Rawal, Starz (via Fischer) also wrote that she had reviewed with Wing and Kevin Spars, manager of financial reporting at United, the accounts that Rawal questioned, the guidelines used for accounting practices, and the testing procedures for the account reconciliation process, and that these sources confirmed that Musa's accounting practices were "not inappropriate." (Id. ¶44.) Starz testified by deposition, though, that she did not recall reviewing the guidelines referenced in the letter, nor speaking with Wing or Spars. (R. 64, Resp. to Facts ¶44.) (United has submitted a declaration from Ed Rogowski, general auditor at United, stating that, based on his review, there had been no violations of Sarbanes-Oxley. (R. 49, Facts ¶45.))
Rawal's Application for a Position in the International Accounting Department While awaiting the results of the internal investigation, Rawal sought a different position at United. Although he was on an action plan and had received a less than "successful" overall rating in his annual review, Rawal was able to apply for a position in the international accounting department as a senior staff representative, which carried a higher pay grade. (Id. ¶55.) The director of the department at the time-and the person responsible for the hiring decision-was Rudolph Stewart. Stewart had worked with Rawal before and encouraged him to apply for the position. (R. 67, Exh. 2 at 202.)
Rawal interviewed on July 14, 2005 and August 15, 2005. (R. 49, Facts ¶51.) He scored a 4 and a 5 in the structured portion of the interview. Sharon Kristensen, a staff representative in the staffing service center at United, testified by deposition that Rawal was a, if not the, successful candidate for the position. (R. 65, Add'l Facts ¶27.) She also acknowledged his high scores on his interviews in a September 7, 2005 e-mail to Janet Troyke, legal counsel for United.
(R.67, Exh. 20.) And, according to notes written by Andrea Kent, senior staff representative for EEO compliance at United, Kristensen gave Kent the impression that the international accounting group was going to make the offer to Rawal. (R. 65, Add'l Facts ¶27.)
Rawal did not get the job. In her September 7 e-mail to Troyke, Kristensen sent "the hiring director's notes," which included an explanation that Rawal had not received the position because he had crossed the line "between following up and displaying overbearing and aggressive behavior," and that he had not demonstrated patience, consideration, or understanding in his post-interview demeanor. (R.67, Exh. 20.) In relaying the notes, Kristensen asked Troyke to let her know if she had any concerns "from a legal perspective" with the reasons given. (Id.) On September 15, 2005, Kristensen wrote to Troyke to add that, given Rawal's "need for development" in "communication, performance management and planning" (the areas in which Musa had given him ratings of "needs improvement" in the 2004 evaluation), he would be more qualified for the position after he established a track record of success in those areas. (Id.)
According to Stewart's declaration, Rawal was denied the position because he was too aggressive in inquiring about the status of his application. (R. 49, Facts ¶52.)*fn2 Stewart states that Rawal was "pestering" him about the hiring decision, which Stewart says he found inappropriate. (Id. ¶53.) It's unclear whether Musa or anyone else outside the international accounting group spoke to Stewart about Rawal before Stewart made the decision not to hire him. (R. 65, Add'l Facts ¶27.) It's also unclear who else applied for the job and who ultimately obtained it.
Rawal's Lateral Transfer to the Cargo Accounting Group When the position in the international accounting department fell through, Rawal sought a lateral transfer. Around September 15, 2005, Rawal interviewed for a staff accountant position in the cargo accounting department, and he accepted an offer to work there at his current pay level (a yearly salary of $45,120)*fn3 on September 28, 2005. (R. 49, Facts ¶54.) Rawal physically moved to the cargo accounting department over a month after he was hired there, on October 31, 2005. (Id.) (The parties dispute whether the 32-day wait violated United's policy to transfer certain employees within two weeks of a hire; Fischer described two weeks as "standard" practice.) (Id. ¶56; R. 65, Add'l Facts ¶23.)
Within days after Rawal accepted the offer in the cargo-accounting group, Musa says he "needed to hire an employee to take over [Rawal's] job duties," and that "the job requirements for the position needed to be modified to account for the Department's evolving responsibilities." (R. 50, Tab 8 at 1.) Musa said that, because the department "had already determined ownership responsibilities for most if not all accounts," the next step was to "implement more procedures, controls, and processes." (Id.) According to Musa, the "newly-created position required more complex work than an entry level Staff Accountant position" and demanded someone with "strong analytical skills, a systems and project management background, and operational business experience." (R. 50, Tab 8 at 2.) Musa changed the title of the newly open position to "senior staff accountant," with a grade level of "F" and a salary of $60,000. (R. 65, Add'l Facts ¶18; R. 50, Tab 8 at 2.)
Musa did not approach Rawal about the position, and, although it was posted both internally and externally, Rawal was not alerted to the fact that it carried a higher salary than he had earned. (R.67, Exh. 29; R. 49, Facts ¶60.) Under United's transfer policy, Rawal was expected to remain in the cargo accounting ...