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April 10, 1998

BIRDAIR, INC., Defendant.

The opinion of the court was delivered by: HECKMAN


 Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including trial and entry of final judgment. Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendant's motion is granted.


 On April 19, 1995, plaintiff filed this action in the United States District Court for the District of Arizona seeking damages, attorneys' fees and costs under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Civil Rights Act of 1871, 42 U.S.C. §§ 1981 & 1988. On January 3, 1996, United States District Judge Roslyn O. Silver transferred the case to this court on the basis of Title VII's venue provision, 42 U.S.C. § 2000e-5(f)(3) (Item 2). *fn1"

 The undisputed facts are as follows. *fn2" Defendant Birdair, Inc. is a construction company with its principal place of business in Buffalo, New York. According to the affidavit of Birdair's President Jon Duncan, Birdair is a wholly-owned subsidiary of Taiyo Kogyo Corporation, a Japanese entity. Birdair is in the business of constructing tension membrane structures and air-supported structures in stadiums, retail facilities, theaters and commercial buildings throughout the world (see Item 38, Duncan Aff., PP 3-4).

 Plaintiff is of Hispanic national origin. He was hired by Birdair in 1987, and was promoted in 1988 to the position of "site superintendent." During the course of his employment with Birdair, plaintiff worked on several construction projects, including the Georgia Dome in Atlanta, Georgia; the Suncoast Dome in Tampa, Florida; the Olympic Stadium in Rome, Italy; and the airport in Denver, Colorado (Item 1, PP 10-15).

 In June, 1993, Birdair instituted a "Superintendent Review" program for evaluation of the performance of its site superintendents for the purposes of promotions and salary increases (see Item 38, Ex. G). The evaluations were also utilized by Birdair to determine "layoff status" for site superintendents during work slowdowns necessitating reductions in force, in accordance with Birdair's "Construction Supervisor Policy" (see Item 38, Ex. A, P 10).

 In November, 1993, seven of Birdair's managers and consultants evaluated eleven site superintendents, including plaintiff, ranking their performance level on a scale of one (unacceptable) to five (exceptional) (Item 38, Ex. H). The superintendents were "ranked for [the] purpose of determining salary increases and layoffs in the event of a reduction in the workload" (id.). Of the eleven superintendents ranked, plaintiff was ranked last, with an average performance level of 1.43 (id.).

 On March 15, 1994, plaintiff signed an employment agreement with Birdair. Paragraph 6(b) of the agreement provided:

The Company's decision to place an Employee who is a Construction Supervisor on layoff status, as contemplated by the Company's Construction Supervisor Policy, as it may be amended or revised from time to time, shall not be deemed termination of such Employee's employment by the Company.

 (Item 38, Ex. B).

 On June 14, 1994, Birdair's Human Resource Administrator Eileen Dunn wrote plaintiff a letter informing him that he was "considered on layoff" as of June 6, 1994, due to a reduction in the work force necessitated by lack of work (Item 38, Ex. C). Birdair also placed four other site superintendents, all of whom were Caucasian, on layoff status as a result of the work slowdown during the summer of 1994 (Item 38, Duncan Aff., P 11).

 On October 24, 1994, Project Manager Kenneth H. Gough wrote plaintiff a letter advising him that Birdair expected the "downturn in [its] business . . . to continue through much of Fiscal Year 1995" and that management had decided to delay all annual salary adjustments (Item 38, Ex. D). Mr. Gough also stated in his letter that Birdair was pursuing several projects and was examining ways of reducing costs, and that, "as projects are booked and begin to generate revenue, I will continue to keep you advised as to the condition of the business" (id.).

 On November 21, 1994, plaintiff wrote to Mr. Duncan (who was then Senior Vice President for Operations) advising him that he was resigning his employment with the company (Item 38, Ex. E). Plaintiff stated in his letter that, despite several work-related injuries, he never took time off from a project or relied on workers' compensation, yet he had not received any work from Birdair since May, 1994. He also stated that he had made several unsuccessful attempts to contact Mr. Duncan about a raise, but instead Mr. Duncan accused him of stealing from the company and denied him bonuses due for his work on jobs in Atlanta and Ft. Worth, Texas. Plaintiff stated, "under these conditions I am forced to make this severe decision knowing from the past your comments, such as Denver when you laid me off and stated 'if you don't like it you could go find another job'" (id.).

 Meanwhile, on September 8, 1994, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") in which he claimed that Birdair discriminated against him because of his national origin, in violation of Title VII, when it denied him a pay increase in November, 1993 and laid him off in June, 1994 (Item 1, Ex. 1). Plaintiff also filed with the EEOC an additional, undated and unsigned charge claiming that on September 23, 1994, he was denied a bonus for completed work, and was informed by Mr. Duncan that he would not receive the bonus because he had filed the previous EEOC charge (id., Ex. 2). On January 23 and 25, 1995, the EEOC sent plaintiff "Notice of Right to Sue" letters advising plaintiff that it would not be able to complete its processing of plaintiff's discrimination charges within 180 days of filing, and that it was terminating its investigation (Item 1, Ex. 3).

 In his complaint, plaintiff alleges that in the spring of 1993, while working on the Denver airport project, plaintiff attended a meeting of site superintendents at which "lead superintendent" Robert Feierabend (spelled "Fierden" in the complaint) had an argument with Quality Control Manager Bruce Mathews. According to the complaint, Mr. Feierabend shouted at Mr. Mathews to "get his 'f black ass and his f papers out of the office'" (Item 1, P 16). Mr. Feierabend then "immediately terminated [Mr. Mathews'] employment with Birdair" (id.). Plaintiff alleges that Mr. Feierabend often used racial slurs, and on several occasions had referred to plaintiff as a "'f Mexican' and a 'wetback'" (id., P 17). Plaintiff claims that as he walked out of the meeting, he commented to another superintendent that he thought Mr. Feierabend's treatment of Mr. Mathews was out of line. One week later, he was laid off by Birdair, and "the caliber of [his] work assignments with Birdair diminished notably" (id., P 19).

 Defendant moves for summary judgment on the following grounds:

1. Plaintiff has failed to demonstrate a prima facie case of ...

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