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LEW v. RADIATION DYNAMICS INC.

February 14, 1998

SAMUEL LEW, Plaintiff, against RADIATION DYNAMICS INC., Defendant.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The plaintiff, Samuel Lew ("Lew" or the "plaintiff") brings this action against his former employer, the defendant Radiation Dynamics, Inc. ("RDI" or the "defendant"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., for alleged discrimination on the basis of his French national origin and retaliatory discharge. Presently before the Court is the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56").

 I. BACKGROUND

 The facts set forth below are taken from the Complaint and the motion papers submitted by the parties. RDI is in the business of manufacturing and servicing machines known as electron beam particle accelerator systems (the "electron beam machines"). These machines apparently emit an electron beam which is "supercharged" with high levels of electricity. This electricity enables the electron beam particle accelerator to transform the molecular structure of various substances. Two of the by-products of this process are ozone and radiation. Due to concern for the release of these by-products into the environment, great care in the maintenance of these machines must be taken. Because each of these machines is worth approximately $ 3 to $ 5 million, with only two of RDI's approximately 250 customers owning backup machines, and the customer unable to manufacture its products while the machine is out of service, great pressure is placed on RDI by the customer to repair the machines when they malfunction. The machines are used by, and located at, RDI's customer facilities located throughout the United States and the world including France, Switzerland, Canada, Germany, Italy, Korea, Taiwan and China.

 Lew is a naturalized American citizen whose country of origin is France. He speaks English with a French accent. Sometime prior to June 14, 1993, he was interviewed for the position of field service technician by Edward Markey ("Markey"), RDI's Manager of Customer Engineering. A field service technician is responsible for the proper service of the electron beam machines at RDI's customers' facilities. On June 14, 1993, Lew, along with Thomas Canavan ("Tom" or "Canavan"), Ronald Pyne ("Ron" or "Pyne"), James Scheid ("Jim" or "Scheid") and Gerald White ("Jerry" or "White"), were hired by RDI. The parties disagree as to whether these five employees were hired as field service technicians or as field service technician interns. According to the defendant, these five employees were to be probationary employees for the first six months. Approximately one month later, Pyne was injured in an automobile accident and dropped out of the program.

 In July 1993, RDI administered a written test entitled "Dynamitron Quiz" to these newly hired employees. This test was graded by Raymond Loby ("Loby"), an RDI supervisor who provided the most classroom training and who passed away in January 1994. According to the defendant, Lew received the lowest score of "poor." However, according to the defendant, the employees were not informed of their scores because RDI did not want to discourage anyone who received a low grade so early in the training period.

 On August 2, 1993, Loby evaluated the four employees on their "vault training" as follows:

 
TOM - FOLLOWER
 
CANNOT SOLDER, WEAK MECHANICALLY.
 
VERY WEAK ON SCHEMATICS
 
CHECK ON SPARK GAPS? WITH WHAT, A.P.S.
 
HOW DO YOU SET THEM
 
LACKS WILLINGNESS TO LEARN.
 
JERRY - WEAK, BUT HAS ABILITY TO LEARN.
 
NOT BAD MECHANICALLY.
 
RON - GOOD, STUDIES, ASKS KNOWLEDGABLE [sic] QUESTION
 
SAM - CANNOT GRASP THE SYSTEM, ASKS WRONG QUESTIONS AFTER I EXPLAIN.
 
DOES NOT SEEM INTERESTED TO LEARN.
 
NOT AGILE ENOUGH
 
COMMENTS LIKE TRYING TO IMPRESS.
 
(LIKE P.T. BARNUM)
 
JIM - SEEMS GOOD, GOOD WORKER.

 (Pl.'s Opp., Ex. 8.)

 Between August 23, 1993 and October 8, 1993, RDI sent Lew with Senior Technician Henry Kowalski ("Kowalski"), to one of its clients, Himont Canada, Inc. ("Himont"), in Quebec, Canada, to help repair an RDI machine. The plaintiff maintains that one of the reasons he was selected for this assignment was because he could speak French fluently.

 The defendant contends that Kowalski was dissatisfied with Lew's performance because he did not possess a positive work attitude, he often disappeared when work had to be done, and he did not seem interested or willing to learn how to do the work. The defendant contends that Kowalski witnessed Lew criticizing RDI's machine to Himont employees after it malfunctioned. The defendant further maintains that Lew had problems working with Himont employees and made lengthy telephone calls during his shift. On October 14, 1993, the defendant contends that Luciano Paoloni ("Paoloni"), an executive at Himont, advised Richard Galloway, RDI's Manager of Systems Engineering, that Himont employees refused to work with Lew and demanded that Lew never be sent back to Himont. The defendant further contends that Paoloni complained that Himont employees had difficulty working with Lew and that Lew gave them improper instructions about how to operate the machine.

 On October 15, 1993, Markey completed 90 Day Employee Evaluations of the four employees. Lew received an overall evaluation of "unsatisfactory." In answer to whether Lew should be retained, Markey checked the space between "yes" and "no." In response to the question "if no, why should he or she be released," Markey wrote as follows:

 
Borderline - need extensive evaluation
 
Try to help him improve
 
Have received customer complaint (customer requested that he not be sent back)
 
Postpone decision until after evaluation

 (Pl.'s Opp., Ex. 10.) Lew was the only one of the four employees who received an overall evaluation of "unsatisfactory." White, Scheid, and Canavan received an overall evaluation of "average job." However, as to whether Canavan should be retained, Markey responded with a "?" marked under "Yes."

 An incident occurred on October 22, 1993. On that date, Lew answered the telephone at RDI. The caller stated that he "wanted to talk to someone who speaks English." (Notice of Mot., Ex. A.) The caller further stated that he was attempting to locate Tony Chliek. According to Lew, when he informed the caller that he was unable to find Chliek, the caller stated that he felt as if he was in a foreign country. When Lew inquired as to the identity of the caller, the caller identified himself as Markey and then hung up.

 In response to this telephone conversation, Lew wrote a letter dated October 24, 1993 to Romualdina Guardino ("Guardino"), the Manager of Human Resources, informing her of this incident. He expressed his concern over the fact that the person who made the comment, is also his direct supervisor. Guardino informed Bernard Kestler ("Kestler"), the President of RDI, of Lew's letter. On or about November 10, 1993, a meeting was held with Kestler, Ed Lawrence, the Operations Manager, Guardino, Lew and Markey, to discuss the incident. The parties disagree as to the what occurred at this meeting. Lew alleges that Kestler expressed anger at him because he made his complaint in writing rather than verbally. (Pl.'s Opp. at 2.) Lew further alleges that Markey never apologized for his ...


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