Wei-Kang Zhou v. Pittsburg State University (252 F. Supp. 2d 1194, 2003)

MEMORANDUM AND ORDER

VRATIL, District Judge.

Wei-Kang Zhou filed suit against his former employer, Pittsburg State University (“PSU”), for breach of contract and discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq. On January 29, 2003, based on plaintiffs failure to attend three scheduled depositions, the Court ordered plaintiff to pay all expenses and attorneys’ fees which defendant incurred because of his discovery misconduct. See Memorandum And Order (Doc. # 114) at 11-13. This matter is before the Court on plaintiffs Motion For Relief, Motion For Reconsider, [And] Motion For Sanction (Doc. # 117) filed February 12, 2003; defendant’s Motion For Attorney Fees And Memorandum In Support (Doc. # 121) filed February 21, 2003; defendant’s Motion For Summary Judgment And Memorandum In Support (Doc. # 119) filed February 20, 2003; and plaintiffs Motion For Extension Of Time (Doc. # 130) filed March 6, 2003. For reasons set forth below, the Court sustains defendant’s summary judgment motion in part, sustains plaintiffs motion to reconsider in part, overrules plaintiffs motion for sanctions and sustains plaintiffs motion for an extension of time.

I. Plaintiffs Motion For Relief And To Reconsider

A. Legal Standards

The Court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir.1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981); Burnett v. W. Res., Inc., 929 F.Supp. 1349, 1360 (D.Kan.1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff’d, 43 F.3d 1484, 1994 WL 708220 (10th Cir.1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992).

The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. & Rehab. Servs., 871 F.Supp. 1381, 1333 (D.Kan.1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

B. Factual Background

On May 17, 2002, the Court entered a scheduling order which directed that all discovery be commenced or served in time to be completed by October 31, 2002. See Scheduling Order (Doc. # 10) at 3. On September 18, 2002, plaintiff asked the Court to continue the discovery deadline to January 29, 2003. See Motion For Continuing The Discovery Cut-off Date (Doc. # 55). Plaintiff argued that the extension was necessary because he did not receive his EEOC investigation file until September 4, 2002. Based on the fact that eight weeks remained for discovery when plaintiff received the EEOC file, Magistrate Judge David J. Waxse ruled that plaintiff had not shown good cause for a three-month extension of the discovery deadline. See Order (Doc. #69) filed October 9, 2002.

On September 6, 2002, defense counsel noticed plaintiffs deposition for October 1 in Pittsburg, Kansas. See Notice Of Taking Deposition (Doc. #53) filed September 9, 2002. On September 26, plaintiff faxed a letter to defense counsel, objecting to the location of the deposition. See Exhibit 4 to defendant’s Motion To Compel Discovery And Memorandum In Support Thereof (Doc. # 63) filed October 2, 2002. Plaintiff requested that defense counsel take his deposition near Los Angeles, California (where plaintiff resides), and notified counsel that he preferred to communicate by mail instead of telephone. See id. On October 2, defendant filed a motion to compel plaintiff to appear in Kansas for his deposition. On October 30, Judge Waxse held a hearing on defendant’s motion but overruled it as moot because plaintiff had agreed to come to Kansas City for his deposition. See Order (Doc. # 78) filed November 1, 2002 at 1. Judge Waxse also extended the discovery deadline from October 31 to November 29. See id. at 2.

Although the place for plaintiffs deposition was thus agreed, the parties could not agree on a date for plaintiffs deposition. Therefore, on November 15, defense counsel noticed plaintiffs deposition for November 26 in Lenexa, Kansas (a suburb of Kansas City). See Notice Of Deposition, attached as Exhibit 5 to defendant’s Motion To Dismiss And Memorandum In Support (Doc. #88) filed December 12, 2002. Plaintiff received the notice by mail on November 18. See Exhibit 6 to Motion To Dismiss (Doc. #88). On November 20, plaintiff faxed defense counsel a letter stating that he would fly to Kansas City for the deposition, but that three PSU administrators should travel to Kansas City so that plaintiff could take their depositions that same day. See Exhibit EE to plaintiffs Response to Defendant’s Motion To Dismiss And Memorandum In Support (Doc. # 95) filed December 17, 2002. Plaintiff did not propose alternative deposition dates and did not indicate how the parties could meet the discovery deadline of November 29 if the depositions did not commence on November 26. See id. On November 25, plaintiff faxed to defense counsel his formal response to the deposition notice. See Exhibit FF to plaintiffs Response to Defendant’s Motion To Dismiss And Memorandum In Support (Doc. # 95) filed December 17, 2002. In that response, plaintiff stated that he would not appear in Kansas City for his deposition on November 26 because defendant had not agreed to produce the three PSU administrators in Kansas City for depositions on the same day. Defense counsel was traveling to Kansas City on November 25, so he did not receive plaintiffs fax. Therefore, on November 26, he appeared for plaintiffs deposition. Plaintiff, as promised, did not appear.

On November 29, plaintiff filed a motion to compel and extend the discovery deadline. See plaintiffs Motion To Compel And Motion For Continuing The Discovery Cutoff Date (Doc. # 83). Plaintiff asked the Court to (1) require PSU administrators to appear in Kansas City for depositions; and (2) extend the discovery deadline to January 13, 2003. See id. at 8-ll.

On December 11, 2002, Judge Waxse held a pretrial conference which addressed plaintiffs motion to compel and the preparation of a pretrial order. Judge Waxse overruled plaintiffs motion to require PSU administrators to be deposed in Kansas City, but he extended the discovery deadline to December 26. See Order (Doc. # 90) filed December 12, 2002. Immediately after the pretrial conference on December 11, defense counsel called plaintiff and talked to him briefly about sending a fax. See Exhibit 1 to defendant’s Reply To Plaintiffs Response to Defendant’s Supplemental Memorandum in Support Of Motion To Dismiss (Doc. # 111) filed January 14, 2003. Later on December 11, defense counsel sent plaintiff a letter, asking plaintiff to contact him so that they could schedule dates for plaintiffs deposition in Kansas City and for depositions of PSU administrators in Pittsburg, Kansas. See Exhibit 1 to defendant’s Reply To Plaintiffs Response And Supplemental Memorandum In Support Of Motion To Dismiss (Doc. # 105) filed December 31, 2002. On December 16, plaintiff faxed a letter to defense counsel explaining that he would not respond to defendant’s request because he did not yet have a copy of Judge Waxse’s order or the district court’s order on his appeal of Judge Waxse’s order. See Exhibit 1 to plaintiffs Response To Defendant’s Supplemental Memorandum In Support Of Motion To Dismiss (Doc. # 108) filed January 8, 2003. On December 16, defense counsel noticed plaintiffs deposition for December 23. See Notice Of Deposition, attached as Exhibit 2 to defendant’s Reply To Plaintiffs Response And Supplemental Memorandum In Support Of Motion To Dismiss (Doc. # 105) filed December 81, 2002. Defense counsel sent the deposition notice to plaintiff by certified mail. The U.S. Postal Service attempted to deliver that notice to plaintiff on December 19, but plaintiff was not at his residence. The Postal Service left a notice which stated that plaintiff could pick up a certified letter from PSU after 9:00 a.m. on December 20.

On December 19, this Court affirmed Judge Waxse’s rulings on plaintiffs motion to compel. See Memorandum & Order (Doc. # 97). As to the depositions of PSU administrators, the Court stated:

Judge Waxse ordered that any depositions of PSU administrators must occur in Pittsburg, Kansas, where they work. Plaintiff argues that because he resides in Los Angeles, California and defendant has a Kansas City satellite location which is close to a major airport, the Court should require PSU administrators to appear in Kansas City. See Motion For Review at 2-3; Motion To Compel at 8-9. Absent exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party’s residence, the deposing party is required to take the deposition where the deponent resides, even if the deponent is a party. Metrex Research Corp. v. United States, 151 F.R.D. 122, 125 (D.Colo.1993); see Moore v. Pyrotech Corp., 137 F.R.D. 356, 357 (D.Kan.1991) (citing 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure; Civil § 2103, at 374-75 (2d ed.1970)). The record does not reflect where the PSU administrators reside, but they work in Pittsburg, Kansas— some 120 miles from Kansas City, Kansas. Judge Waxse’s ruling that plaintiff must depose defendant’s administrators in Pittsburg, Kansas is not clearly erroneous.

Id. at 4-5. As to the extension of the discovery deadline, the Court affirmed Judge Waxse’s ruling that all discovery be completed by December 26. See id. at 8. On December 12, defendant had filed a motion to dismiss based on plaintiffs failure to cooperate in discovery and comply with a court order relating to his deposition. See Motion To Dismiss And Memorandum In Support (Doc. # 88) filed December 12, 2002. Although defendant’s motion was not ready for ruling at the time of its order, the Court noted that it would “not tolerate any further delay of plaintiffs deposition.” Memorandum & Order (Doc. # 97) at 9. The Court also cautioned: “If plaintiff again fails to appear for his deposition by the court-imposed deadline, the Court likely will impose sanctions, up to and including dismissal of the case with prejudice. The filing of further objections or motions on this issue will not operate to extend or stay the deadline.” Id. (emphasis in original). The next morning, December 20, the Clerk faxed to plaintiff and defense counsel a copy of the court order.

On December 20, in a telephone conference with plaintiff, defense counsel agreed to depose plaintiff on December 26 and to have Dr. Tom Bryant, PSU President, available for deposition that same day. On December 23, however, defense counsel appeared for plaintiffs deposition in Le-nexa, Kansas and plaintiff failed to appear.

On January 29, 2003, based on plaintiffs failure to attend three scheduled depositions, the Court ordered plaintiff to pay all expenses and attorneys’ fees which defendant incurred because of his misconduct. See id. at 11-13. Plaintiff seeks reconsideration of that ruling.

C. Analysis

Plaintiff argues that the Court should not have sanctioned him for failing to attend his deposition on December 23 because on December 20, defense counsel agreed to take plaintiffs deposition on December 26. To support his contention, plaintiff has presented a written transcript of a tape recorded conversation between plaintiff and defense counsel on December 20.

Defendant argues that the transcript is inadmissible because plaintiff tape recorded the telephone conversation in violation of California law. Plaintiff argues that he did not violate California law because one party to the conversation (plaintiff) consented to the recording. Under the California Penal Code, a party cannot record a confidential communication “without the consent of all parties” to the communication and such illegal recordings are inadmissible in any judicial proceeding. Cal.Penal Code § 632. Therefore plaintiff probably violated state law by recording the telephone conversation without defense counsel consent. See Flanagan v. Flanagan, 27 Cal.4th 766, 117 Cal.Rptr.2d 574, 41 P.3d 575, 581-82 (2002) (statute applies to all nonconsensual recordings of telephone conversations regardless of content of conversation).

The more difficult issue is whether the tape recording of the telephone conversation should be excluded in federal' court where, as here, the federal court has subject matter jurisdiction because of á federal question. See Pretrial Order (Doc. # 103) filed December 23, 2002 at 1. The Ninth Circuit recently addressed the conflict between California Penal Code § 632 and federal law, which permits the recording of private conversations if the recording: is not made for the purpose of committing a criminal or tortious act. See Feldman v. Allstate Ins. Co., 322 F.3d 660 (9th Cir.2003); see also 18 U.S.C. § 2511(2)(d) (party to communication may intercept communication except for purpose of committing criminal or tortious act). The Ninth Circuit held that under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), Section 632 of the California Penal Code constitutes substantive law and should be enforced in diversity cases. See Feldman, 322 F.3d 660, 666-67. The Ninth Circuit noted that in non-diversity cases, however, evidence obtained in contravention of state law is admissible in federal court, so long as no federal law is thereby violated. See id. at 665-66 (citing United States v. Cormier, 220 F.3d 1103, 1111 (9th Cir.2000) and United States v. Adams, 694 F.2d 200, 201 (9th Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3085, 77 L.Ed.2d 1347 (1983)); see also Roberts v. Americable Int’l. Inc., 883 F.Supp. 499, 503 (E.D.Cal. 1995). Accordingly, in this case which is based on a federal question, the tape recording of the telephone conversation on December 20 is admissible.

Defendant also objects that the tape recording does not include the entire telephone conversation, other telephone conversations between the parties or messages which defense counsel left on plaintiffs answering machine. Defendant cites no authority for its position that an audiotape is inadmissible unless it includes the entire conversation or all conversations during a certain time period. Here, plaintiff explains that he answered the phone and started the tape recording shortly thereafter. In these circumstances, the excerpt is not inadmissible.

Finally, defendant objects for lack of foundation and authentication. For purposes of a pretrial motion related to sanctions, the Court finds that plaintiff has satisfied his burden. See Fed.R.Evid. 901(a) (authentication requirement satisfied by evidence sufficient to support finding that matter is what proponent claims it is). Plaintiff states that the tape is a recording of a telephone conversation between himself and defense counsel on December 20. On the tape, defense counsel confirms his name and the date of the conversation. Moreover, except for its general objection to the authenticity of the tape, defendant does not argue that any portion of the tape has been altered or that the transcript does not accurately reflect the telephone conversation. In these circumstances, the Court will consider the audiotape in connection with plaintiffs motion to reconsider the award of sanctions.

Defense counsel does not deny that on December 20, in response to plaintiffs statement that he would be in Pittsburg for his deposition on December 26, defense counsel stated that he would be available to take plaintiffs deposition on that day and that Dr. Bryant would also be available. . In direct contradiction of this representation, defense counsel appeared for plaintiffs deposition on December 23 in Lenexa, Kansas. Plaintiff did not appear for the deposition on December 23, apparently relying on defense counsel’s statement that he would be available for plaintiffs deposition on December 26. Because plaintiff and defense counsel talked several times and/or sent several faxes during this time frame, the timing and context of defense counsel’s representation is not entirely clear. Moreover, until now, plaintiff has never claimed that defense counsel agreed to take his deposition on December 26. See Response To Defendant’s Supplemental Memorandum In Support Of Motion To Dismiss (Doc. # 108) filed January 8, 2003; Amend To Plaintiffs Response To Defendant’s Supplemental Memorandum To Dismiss (Doc. # 113) filed January 23, 2003. Given plaintiffs pro se status and the standard to justify an award of sanctions, however, the Court will construe the uncertain context of defendant’s representation in plaintiffs favor. Accordingly, the Court sustains plaintiffs motion to reconsider and vacates its award of fees and expenses which defendant incurred because of plaintiffs failure to attend three scheduled depositions. See Memorandum And Order (Doc. # 114).

II. Plaintiffs Motion For Sanctions

Plaintiff asks the Court to sanction defense counsel for “misconduct, lying and misrepresentation” and “non-cooperative manner” in the discovery process, and to grant plaintiff additional time to file motions, and to order defense counsel to pay plaintiffs attorney consultant fee and fees and costs for any additional court filing regarding discovery in this case. Plaintiff’s Motion For Relief, Motion For Reconsider, Motion For Sanction (Doc. # 117) filed February 12, 2003 at 21. Plaintiff does not specify the authority for his sanctions request, but in part he argues that defense counsel’s representations to the Court were false and misleading. To the extent that plaintiff seeks sanctions under Rule 11, the Court overrules his request because he did not wait 21 days after service of the request for sanctions before filing a motion with the Court. See Fed.R.Civ.P. 11(c)(1)(A).

Even if plaintiff had complied with Rule 11(c)(1)(A), he is not entitled to sanctions. The Court has considerable discretion when it comes to imposing sanctions under Rule 11. See Nat’l Hockey League v. Metro. Hockey Club. Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). In determining which sanctions should be imposed, the Court must consider the purposes to be served by the imposition of sanctions. In White v. Gen., Motors Corp., Inc., 908 F.2d 675 (10th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991), the Tenth Circuit outlined those purposes as including (1) deterring future litigation abuse, (2) punishing present litigation abuse, (3) compensating victims of litigation abuse, and (4) streamlining court dockets and facilitating case management. 908 F.2d at 683. The primary goal of sanctions is to deter misconduct. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 398, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). In considering the imposition of sanctions, the Court must consider on a case-by-case basis whether a party’s failure was substantially justified or whether other circumstances make the imposition of sanctions inappropriate. In re Westinghouse Elec. Corp.. Uranium Contracts Litig., 563 F.2d 992, 997 (10th Cir.1977) (citing Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958)).

Plaintiff first argues that defense counsel lied to the Court when he stated that he made numerous phone calls to plaintiff on December 11 and 16, to discuss plaintiffs deposition. Based on the telephone records defense counsel submitted, this Court found that “[i]mmediately after the pretrial conference on December 11, defense counsel called plaintiff and talked to him for approximately one hour,” Memorandum And Order (Doc. # 114) at 4, and that defense counsel made repeated efforts to contact plaintiff on December 16, id. at 4 n. 4. Plaintiff points out, and defense counsel concedes, that the one hour telephone call was actually the pretrial conference with Judge Waxse. The Court’s order should read that immediately after the pretrial conference on December 11, defense counsel called plaintiff and talked to him briefly about sending a fax. Although defense counsel highlighted the one hour call as one made to plaintiff, his memorandum did not represent that after the pretrial conference, he talked to plaintiff for nearly one hour. The Court — not defense counsel — erroneously reached that conclusion. As to the Court’s conclusion that defense counsel made repeated efforts to contact plaintiff on December 16, the context of that comment reflects that such efforts were on December 11. The reference to December 16 is therefore erroneous. These two errors had no material effect on the Court’s order on sanctions. Although defense counsel could have explained in greater detail the contents of the telephone records, his conduct does not warrant sanctions.

Next, plaintiff maintains that defense counsel lied when he stated that he faxed notices of deposition to plaintiff on December 11 and December 16. In its order of January 29, 2003, the Court did not make a factual finding on this issue. Whether defense counsel sent the deposition notice by fax was not material to the Court’s ruling on sanctions. Based on the record, the Court cannot determine with certainty whether defense counsel sent the deposition notice by fax. The Court will not sanction defendant based solely on plaintiffs version of the events.

Finally, plaintiff asks the Court to grant him leave to depose “the administrators and music faculty members, and to pay to the plaintiff the costs for making additional travel to Kansas for depositions.” Id. Plaintiffs current request does not specify the names of the individuals he wants to depose or explain why plaintiff could not take their depositions before the discovery deadline. To the extent plaintiff asks for discovery as a sanction, the Court overrules his request for the reasons set forth above. To the extent plaintiff seeks to reopen discovery, the Court notes that except for plaintiffs deposition on February 6, 2003, discovery closed on December 26, 2002. The Court has discretion whether to reopen discovery. See SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir.1990); Smith v. United States, 834 F.2d 166, 169 (10th Cir.1987). To determine whether to reopen discovery, the Court considers the following factors: (1) whether trial is imminent; (2) whether the request is opposed; (3) whether the non-moving party would be prejudiced; (4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court; (5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court; and (6) the likelihood that the discovery will lead to relevant evidence. Id. Each of these factors weighs against reopening discovery. First, trial is scheduled to begin in less than two weeks. Given the posture of the case — discovery has closed and defendant has filed a summary judgment motion-defendant would be prejudiced if discovery were reopened. Moreover, plaintiff had ample time during discovery to take depositions, but he did not do so. Finally, plaintiff has not shown that the depositions will likely lead to relevant evidence. Therefore the Court over rules plaintiffs request to reopen discovery.

III. Defendant’s Motion For Summary Judgment

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the non-moving party to demonstrate that genuine issues remain for trial “as to those dispos-itive matters for which it carries the burden. of proof.” Applied Genetics Int’l Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The non-moving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

“[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment.” Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party’s evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. “In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Plaintiff’s Motion For Extension Of Time To File Opposition Brief

The Court originally ordered plaintiff to file any opposition to defendant’s summary judgment motion by March 3, 2003, and allowed defendant to file a reply brief by March 7, 2003. See Memorandum And Order (Doc. # 114) filed January 29, 2003 at 17-18. On March 3, the Court sustained plaintiffs motion for extension of time and ordered plaintiff to file his opposition brief by March 7, with defendant to file a reply brief by March 13. See Order (Doc. # 125). On March 6, plaintiff filed another motion for extension of time, asking to file his opposition brief on March 11. See plaintiffs Motion For Extension Of Time (Doc. # 130) filed March 6, 2003. For good cause shown, the Court finds that plaintiffs motion for extension of time should be sustained.

On March 19, without leave of court and without seeking an extension of its March 13 deadline, PSU filed a reply brief in support of its motion for summary judgment. See defendant’s Reply To Opposition For Summary Judgment (Doc. # 138). Because defendant did not timely file its reply brief or seek an extension of time before the deadline, the Court analyzes whether PSU has shown excusable neglect. See D. Kan. Rule 7.4 (failure to respond within time specified constitutes waiver of right to thereafter file such response, except upon showing of excusable neglect). The Supreme Court analyzed the excusable neglect standard in Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In determining whether the excusable neglect standard is met, courts should consider all relevant circumstances, including: “(1) the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith.” Id. at 395, 113 S.Ct. 1489. PSU has addressed none of these factors. Because trial of this matter is scheduled in less than two weeks, the Court will not sua sponte find excusable neglect by PSU. PSU should have known that it had to either comply with the March 13 deadline or seek an extension of time. Accordingly, the Court disregards PSU’s reply brief.

Factual Background

For purposes of defendant’s motion for summary judgment, the following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.

Plaintiff, an American citizen who was born in China, has more than 20 years experience as a music teacher. From 1979 to 1986, plaintiff taught at the Shanghai Conservatory of Music in Shanghai, China. Declaration Of Dr. Wei-Kang Zhou (Doc. # 133) filed March 11, 2003 ("Plaintiffs Deal.”) ¶ 2. From 1986 through 1990, plaintiff taught music at the Houston Conservatory of Music in Houston, Texas. Id. ¶ 7. In 1990, plaintiff started to teach at the University of Southern California while he pursued a doctorate degree. Id. ¶ 8. Plaintiff also served as concertmaster in two professional orchestras in Los Angeles and conductor of a youth symphony. After plaintiff received his Doctor of Musical Arts degree from the University of Southern California, he went to teach at La-Grange College for the 1995-96 academic year. He also served as concertmaster of the LaGrange Symphony. Id. ¶¶ 5, 10. After one year, he went to Arkansas State University, where he served as string instructor and conductor of the Arkansas State University Orchestra. Id. ¶ 11.

In August 1997, PSU hired plaintiff as a tenure track assistant professor in the Department of Music. The vacancy notice for the position stated:

RESPONSIBILITIES: Teach studio violin and viola to majors, minors and general students as well as courses in string pedagogy and technique. Teach courses in music theory and/or literature. Participate actively in the recruitment of students. Serve as Concertmaster of the Southeast Kansas Symphony Orchestra and perform with faculty.

Exhibit AA to Plaintiff’s Decl. (Doc. # 133). Plaintiff understood that at PSU, he was required to serve as concertmaster of the Southeast Kansas Symphony Orchestra (“SEK Symphony”) and perform with faculty. Plaintiff taught applied violin and viola, chamber music, string ensemble, string technique and music appreciation. Plaintiffs Decl. ¶ 17.

On March 1, 1999, Gene E. Vollen, Interim Chair of the Department of Music, gave plaintiff his annual performance appraisal for the calendar year 1998. The appraisal rated plaintiffs teaching and service as “above satisfactory,” his scholarly activity as “highly satisfactory,” and his overall performance as “above satisfactory.”

Later in March of 1999, plaintiff refused to participate in an SEK Symphony concert. Before he missed the concert, plaintiff told Vollen that he played the violin too much, that his hands hurt and he did not want to permanently injure them, and that he needed a rest. At a PSU music faculty meeting in March of 1999, plaintiff raised “the discrimination issue.” Plaintiffs Decl. ¶ 19. Plaintiff told other faculty members that the requirement to serve the SEK Symphony was discriminatory, “that other music faculty members received credit towards their annual performance appraisal for their participation once or twice each year in the [SEK] Symphony but I participated more than anyone else and I would be punished if I miss one concert ...; and I was never given any credit towards my workload for the weekly work plus the work on Saturdays and Sundays.” Id. In that meeting, many faculty members stated that plaintiffs situation was not fair and one faculty member stated that plaintiff should be given credit for his work in the SEK Symphony.

On May 27, 1999, Vollen gave plaintiff his second year tenure review letter. The letter generally included positive comments as to plaintiffs teaching, scholarly activity, creative endeavor and service. As to collegiality, however, the letter noted:

COLLEGIALITY: The Tenured Faculty do have serious concerns which need to be addressed and, while I am listing them under this heading, they overlap with other areas, especially Teaching and Service.

The Tenured Faculty note that in the Job Description, under which you were employed and which has not been subsequently altered, you are required to act as Concert Master of the SEK Symphony.

They also note that, .beginning with the March, 1999 concert, you have refused to participate in that capacity, leaving the string students without the leadership the faculty had envisioned when they conducted the search that brought you to campus. They feel that this unilateral decision on your part, with the concurrent avoidance of proper procedure in dealing with this sort of concern, represents a violation of your obligation to live up to the position description. This has strong implications for a negative tenure decision or even notice of termination.

' The Tenured Faculty are also very concerned about a lack of professional behavior which would require tact and diplomacy in public, and the avoidance of discussing colleagues with your students, and of loudly discussing material in front of others (including students) that should be discussed in private and only with the individuals involved.

The Tenured Faculty feel that you need to agree to participate with a positive collegial attitude and professional behavior in order to become tenured at Pittsburg State University.

Exhibit M to Plaintiff’s Decl. (Doc. # 133). Shortly thereafter, plaintiff talked to Dean Brill about the letter. Plaintiff stated that the university was discriminating against him. Plaintiff’s Decl. (Doc. # 133) ¶ 23. Dean Brill stated that we need to “look into the issue why you are the only one in the music department, who is required to do the work in the [SEK] Symphony.” Id.

In August 1999, Anne Patterson replaced Vollen as chairperson of the music department. Plaintiff talked to Patterson about the “discrimination issue” and she agreed that the symphony requirement was unfair and that plaintiffs teaching load was too heavy. Id. ¶ 24. Despite these comments, Patterson did not adjust plaintiffs teaching load and she asked plaintiff to play in the SEK Symphony several times during the fall semester of 1999. Plaintiff did not play in the SEK Symphony during the 1999-2000 academic year. Deposition of Plaintiff at 313, attached as Exhibit 3 to defendant’s Motion For Summary Judgment And Memorandum In Support (Doc. # 119) filed February 20, 2003.

On March 1, 2000, Patterson gave plaintiff an annual performance appraisal for the calendar year 1999. The appraisal rated plaintiffs teaching and overall performance “less than satisfactory,” and scholarly activity and service as “satisfactory.” As to teaching (which included recruiting), Patterson noted that plaintiff had recruited one student, Ni Mei, in violation of the Code of Ethics of the National Association of Schools of Music (“NASM”), the music department’s accrediting agency. Patterson also noted that when she questioned plaintiff about the incident, plaintiff did not tell her the truth, which jeopardized Patterson’s credibility and put the music department in a difficult position. As to scholarly activity, Patterson noted that plaintiff had played with the Memphis Symphony from January through May of 1999, but that plaintiff apparently did not request permission to do so and the activity took him away from his classes for several days throughout the semester. As to service, Patterson noted that plaintiff had declined service in the SEK Symphony even after the chairperson had asked him to play in a single concert which required only two rehearsals.

Plaintiff asked Dean Brill and Patterson to review his appraisal, but they agreed with the original evaluation. On March 15, 2000, Dean Brill and Patterson recommended to Dr. Ratzlaff that no change be made to plaintiffs evaluation. That same day, plaintiff gave Dean Brill a grievance regarding his performance appraisal and asked PSU to change the rating to “above satisfactory” for each category including his overall performance. Plaintiff stated:

[Teaching] I did not know the NASM “ethic code” at the time when I made the scholarship recommendation to the music department.... The reason I did not want to let people know where the student came from was not because of the NASM “ethic code.” I didn’t know the “code” at the time. Ni Mei' studied with a violin teacher in Converse College in South Carolina, and I found that Ni-Mei’s violin teacher was a friend of mine. We both studied with the same violin professor in University of Southern California in Los Angeles. We both got doctorate degree in the same school. What I was worried was that my friend would tell my former professor at University of Southern California that I stole her student if I helped the student come to PSU. * * * *

on January 27, 2000, Anne Patterson called me with an angry tone. She said that she talked- to Xiao-Guo Zhu (Xiao-Ghu is my student in PSU. She introduced Ni Mei to PSU). Anne Patterson said “Xiao-Guo told me that you knew Ni Mei. You also knew Ni Mei was attending Converse College. Ni Mei also visited PSU,- and met you. Why did you tell me that you didn’t kn[o]w Ni Mei and you didn’t kn[o]w she was in Converse College?” I said that “I didn’t tell you the truth simply because I want to save a student. Because that student will be destroyed if I don’t try to save » * * * *

I told Anne Patterson the untruth. I apologize. * * * *

I did tell the untruth to the chair, Anne Patterson. I feel sorry. I apologize. But it’s not fair to deny all my teaching and recruiting accomplishments by one incident. * * * *

[Scholarly Activity] Since I came to PSU in the Fall of 1997, I played a few times in the Memphis Symphony each semester. I whs never told to get permission .... When Anne Patterson came in the Fall of 1999, she announced that everyone needed to fill in a form and g[e]t permission from department chair before leaving town. I have done exactly what she said.

Anne Patterson said to me that “you played in Memphis Symphony five times in the Spring Semester. At least, you missed five hours classes in that semester. You were paid for these missing classes. That’s why I need [to] lower you scholarship rating.”- But I was asked to teach seven and half hours extra beyond the regular teaching load every week. Why did I not get any pay for doing such a heavy extra teaching work? * * * *

[Community] I did not want to play in the coming SEK Symphony concert [on December 5, 1999]. I talked to Anne Patterson, and told her the story. I said that I did not want to play the coming SEK Symphony concert because Caro-lann Martin was trying to destroy my reputation in the town. Anne Patterson said “I forgot you need to play that concert. This time is OK. But next time please tell me earlier.” I explained to her that because Anne Patterson was out of town for a few days and the newspaper incident happened during these days, that’s why I did not get a chance to talk to her. Anne Patterson said that she understood the situation that I did not get a chance to tell her earlier because of the timing. * * * * It is unfair that I was lowered [in the] service performance rating because of this incident. Also, if it was service, Anne Patterson should not force me to do it. I already have such a heavy teaching load. Why do I still have to play the SEK Symphony?

Plaintiff Depo. Exh. 5. Dean Orville Brill and Patterson denied plaintiffs request to change his performance appraisal rating.

On. April 6, 2000, plaintiff filed a formal appeal regarding his 1999 performance appraisal with Dr. Bryant. Plaintiff stated:

I believe there is a discrimination issue here. There were rumors that there were at least seven faculty members from the music department who had their 1999 performance appraisal ratings corrected by Dean Brill. I have worked very hard and contributed a lot to the music department but my 1999 appraisal was not corrected. I would like to be treated equally as everyone else in the music department.

Exhibit P-a to Plaintiff’s Decl. (Doc. # 133). On April 26, 2000, Bryant denied plaintiffs appeal. Bryant noted that plaintiffs “less than satisfactory” rating had a rational basis.

In 1999, all the appraisal ratings for music faculty members were higher than plaintiffs rating. In plaintiffs opinion, however, he had contributed more than anyone else in the music department that year. Also, many faculty members who received higher ratings than plaintiff were still not satisfied. . When these faculty members resubmitted their appraisals, each one received an even higher rating.

On April 28, 2000, Patterson arranged a student recital which originally was scheduled to last a maximum of 42 minutes. Students signed up for the recital and listed the length of the pieces they were going to perform. Based on the sign-up sheet, the estimated length of the program was 56 minutes. Patterson did not cut any students from the program, but she put two of plaintiffs students at the end of the recital. After the recital ran over time, Patterson sent plaintiff a memorandum which explained in part:

Last Tuesday’s recital, as you know, far exceeded the time limits of the class, with the result that the choir, which has a concert coming soon, lost a substantial amount of its rehearsal time. The fact that your timing of Xiao Guo Zhu’s and NiMei’s pieces was not even close to the actual length of these movements made it impossible to plan this recital hour accurately. Xiao Guo’s performance took almost 15 minutes (you had listed 8 on the sign-up sheet), and Ni Mei’s took 18 minutes (you had listed 10 on the sign-up sheet).

When you were asked [to] make cuts so that we could accommodate the many students who needed performance time, you refused, stating that your students needed to perform these works in public, in preparation for a competition. I was sympathetic to their need to perform these works before a live audience, and attempted to ensure that the recital, though long, would not run over-time. Had I known then that you had not accurately timed these pieces (they needed almost double the time you allotted), we could have avoided the serious conflict with choir time.

Exhibit W to Plaintiffs Decl. (Doc. # 133). The students, not plaintiff, had provided the time estimates for their pieces. Plaintiffs Decl. (Doc. # 133) ¶ 37. None of the other teachers of students in the recital received similar memoranda from Patterson. Id.

On May 2, 2000, Patterson sent Dr. Rat-zlaff a letter which recommended that PSU issue plaintiff a terminal contract for the 2000-01 academic year. Patterson noted as follows:

That the tenured members of the department of music have had serious concerns about Dr. Zhou’s work in the department is clear in his second year letter. Serious issues of collegiality and professional judgment were raised then. I have to say that, although he and Dr. Carolann Martin have resolved some of the issues between them which were so problematic last year (perhaps because they now have little to do with one another), I believe that other serious issues remain. * * * *

It is extremely important that I be able to depend upon what a faculty member tells me to be true. Dr. Zhou has made a habit of telling me untruths in important situations. I find that I can no longer trust his word. He seems unwilling or unable to learn procedures. After the terrible uproar over NiMei’s scholarship, I find that he has offered a scholarship to an incoming student, without having discussed the offer with Dr. Martin, his colleague in the strings area, or with me, as departmental policy prescribes. * * * *

His teaching record this year has been marred [with] his recruiting “irregularities” and the series of lies he offered concerning these irregularities. His scholarly effort is extremely limited: The recordings that he cites in his annual report are CDs which he burned himself. His playing in Memphis was, unfortunately, apparently praised in years past. This year it has come to light that he made no effort to see that his classes were covered during these monthly trips to Tennessee, for which he was paid. * * * *

I believe that retaining Wei-Kang Zhou is not in the best interest of the Department of Music. In a department that places high value upon collegiality and mutual effort toward common goals, Dr. Zhou is not a good match. His time here has been marked by discord and controversy.

Exhibit CC to Plaintiffs Decl. (Doc. # 133).

On May 9, 2000, the president of the PSU chapter of the Kansas National Education Association (“PSU/KNEA”) notified Bryant and plaintiff that the executive committee of PSU/KNEA had approved advisory arbitration as to plaintiffs 1999 performance appraisal. Exhibit R to Plaintiffs Decl. (Doc. # 133).

On May 15, 2000, Bryant notified plaintiff that as recommended by the Chair of the Department of Music, in consultation with the Dean of the College of Arts and Sciences, PSU would not continue his employment beyond May 12, 2001. PSU gave plaintiff a contract to teach in the music department for the 2000-01 academic year. The PSU Unclassified Personnel Handbook states that those faculty members who have been employed with PSU for two or more years are entitled to one year’s notice that they will not be reappointed.

Plaintiff resigned his PSU position on June 27, 2000 and he accepted a position at Southern Utah. University for the 2000-01 academic year.

From August 1997 through June 2000, plaintiff was the only member of the music faculty who was born in China; all other faculty members were Caucasian.

Plaintiff does not know if he was subject to discrimination, or treated differently than other faculty members during the 1997-98 academic year. Plaintiffs Depo. at 101-02, 104. Plaintiff does not recall any discriminatory remarks at PSU. Id. at 101,151. According to plaintiff, people are not so foolish today to make such remarks. Id. at 101,151.

Plaintiff did not file a formal complaint of discrimination with the PSU Equal Employment Opportunity director, but plaintiff raised the “discrimination issue” at a faculty meeting in March of 1999, at a meeting -with Dean Brill shortly after the second year tenure review letter in May of 1999, at a meeting with Patterson in August of 1999, in grievances filed with Bryant and Brill in March and April of 2000, and in a grievance regarding his teaching load, which he filed with Patterson in the spring of 2000.

Plaintiffs teaching accomplishments are outstanding. Plaintiffs Decl. (Doc. # 133) ¶ 3. Many former students are now professional musicians in the United States. Id. During his three years at PSU, plaintiff had the heaviest workload of any faculty member in the music department. Id. ¶ 18. As explained above, PSU required plaintiff to serve as concertmaster for the SEK Symphony, but it did not ask any other faculty member to do likewise. Id. During his three years at PSU, plaintiff received very good student evaluations. Id. ¶ 15. Plaintiff recruited more student players for the SEK Symphony than any other faculty member. Id. ¶ 22.

On April 2, 2001, plaintiff testified in a deposition in a separate lawsuit that he left PSU because he found a better job. Plaintiff denied that he left PSU involuntarily because of a less than satisfactory performance rating or discrimination. In his deposition in this case, however, plaintiff explained “better means different things, you know, better in teaching area, or be better in service area, or better in location, more close to Los Angeles, and there are different meanings, what do you mean. Better certainly does not include everything.” Plaintiffs Depo. at 277.

On October 9, 2001, plaintiff filed suit against PSU for national origin discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq., and breach of contract. PSU seeks summary judgment on all of plaintiffs claims. PSU argues that plaintiffs national origin was not a determining factor in its employment decisions; that plaintiff did not participate in protected activity under Title VII; that to the extent plaintiff engaged in any protected activity, it did not take adverse employment action in retaliation for such activity; and that plaintiff cannot show a breach of the employment contract or any damages with respect to his breach of contract claim.

Analysis

A. Disparate Treatment

Plaintiff alleges that because of his national origin, PSU (1) gave him an heavier workload than other teachers in the Music Department, (2) gave him a negative tenure review letter in May 1999, (3) gave him a poor evaluation in March 2000 and (4) notified him in May 2000 that it would not renew his employment beyond May of 2001 because of his national origin. To prevail on his claim, plaintiff must establish that his national origin was a determining factor in the challenged decisions. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir.1996) (citing Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir.1988)). Plaintiff need not show that his national origin was the sole reason for the challenged actions, but he must show that his national origin “made the difference” in the decisions. Greene, 98 F.3d at 557 (quoting EEOC v. Sperry Corp., 852 F.2d 503, 507 (10th Cir.1988)). He may meet this burden by direct or circumstantial evidence that his national origin was a determining factor, or by the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Plaintiff has not presented direct evidence of discrimination based on national origin. The Court therefore evaluates his claims under the burden-shifting framework established in McDonnell Douglas. To set forth a prima facie case of discrimination under McDonnell Douglas, plaintiff must show each of the following elements: (1) that he belongs to a protected class; (2) that he suffered an adverse employment .action; and (3) that the adverse employment action occurred under circumstances which give rise to an inference of discrimination. See Hysten v. Burlington N. & Santa Fe R.R. Co., 296 F.3d 1177, 1181 (10th Cir.2002).

As to plaintiffs claim related to his heavy teaching load, defendant does not dispute that an increased teaching load can constitute adverse employment action, cf. Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir.1998) (adverse employment action does not extend to mere inconvenience or alteration of job responsibilities), but it claims that plaintiff does not have sufficient evidence that his teaching load was heavier than those of other faculty members or that the department chairperson changed the teaching load of other faculty members who had heavy loads. In his deposition, plaintiff stated that (1) he does not remember how many classes or studio hours per week he taught during the fall of 1997, (2) he does not know whether his class load was lighter or heavier in comparison to other faculty members in the fall of 1997, (3) he cannot identify any faculty member who had a heavy teaching load which PSU lightened; and (4) he cannot recall his teaching load in academic year 1998-99. Plaintiffs Depo. at 90-91, 128-30. In his declaration, however, plaintiff states that during his three years of employment at PSU, he had the heaviest workload in the music department. See Plaintiff’s Deel. (Doc. # 133) ¶¶ 18, 29. Defendant does not challenge plaintiffs competence as a witness on this issue, and it has not offered evidence to contradict plaintiffs assessment of his relative workload. Moreover, defendant does not offer a legitimate non-discriminatory reason for giving plaintiff the heaviest workload. The Court therefore overrules defendant’s motion for summary judgment as to plaintiffs claim that PSU assigned him a heavy workload without additional pay because of his national origin.

As to the three other adverse employment actions outlined above, defendant does not dispute that plaintiff can demonstrate a prima facie case. Plaintiffs establishment of a prima facie case creates á presumption of unlawful discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). After plaintiff has established a prima facie case, the burden shifts to defendant to produce evidence that it took the adverse employment action for a legitimate nondiseriminatory reason. Greene, 98 F.3d at 558; Randle, 69 F.3d at 451. Defendant must articulate and produce some evidence that it took each adverse action for a “facially legitimate and nondiscriminatory reason.” Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir.1997).

Defendant does not mention the above analysis, but it nevertheless has offered non-discriminatory reasons for each adverse employment action. Therefore defendant has met its burden. The presumption of discrimination therefore drops from the case and plaintiff must establish by a preponderance of the evidence “that the proffered reason was not the true reason for the employment decision.” Id. Plaintiff may show pretext by establishing either that a discriminatory reason more likely motivated defendant or that the employer’s explanations are unworthy of credence. Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir.1994).

A plaintiff can show pretext by pointing to “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (quotations omitted). While “[t]his burden is not onerous ... it is also not empty or perfunctory.” Id. at 1323-24. A plaintiff typically makes a showing of pretext in one of three ways: (1) with evidence that the defendant’s stated reason for the adverse employment action was false; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances; or (3) with evidence that the defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse employment decision affecting the plaintiff. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir.2000). More specifically, evidence of pretext may include, but is not limited to, the following: “pri- or treatment of plaintiff; the employer’s policy and practice regarding minority employment (including statistical data); disturbing procedural irregularities (e.g., falsifying or manipulating ... criteria); and the use of subjective criteria.” Simms v. Okla. ex rel. Dept. of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir.1999).

In this case, defendant has offered multiple non-discriminatory reasons for its actions. An employee generally must proffer evidence to show that each of the employer’s justifications are pretextual. See Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 814 (10th Cir.2000), The Tenth Circuit recognizés, however, that “when the plaintiff casts substantial doubt on many of the employer’s multiple reasons, the jury could reasonably find the employer lacks credibility.” Id. In such circumstances, the jury need not believe the employer’s remaining reasons. See id. An employee is relieved Of the obligation of proving that each stated reason is pre-textual' only where “the multiple grounds offered by the defendant ... are so intertwined, or the pretextual character of one of them so fishy and suspicious, that the plaintiff may [prevail].” Id. (quoting Wilson v. AM Gen. Corp., 167 F.3d 1114, 1120 (7th Cir.1999)) (further citation omitted).

1. Plaintiffs Second Year Tenure Review Letter Dated May 27, 1999

Plaintiff argues that PSU discriminated by giving him a negative tenure review letter dated May 27, 1999. Defendant’s stated reasons for giving plaintiff the negative evaluation are: (1) beginning with the concert in March of 1999, plaintiff refused to participate as concertmaster of the SEK Symphony, which was a requirement of his position and (2) plaintiff exhibited unprofessional behavior by discussing colleagues and students in public.

Plaintiff claims that his favorable review in March of 1999, only two months before the review letter of May 27, 1999, demonstrates that defendant’s proffered reasons for the negative review are a pretext for discrimination. A change in management’s evaluation of employee performance, however, does not by itself raise an inference of pretext. See Aquilino v. Univ. of Kan., 83 F.Supp.2d 1248, 1256 (D.Kan.2000); Valdivia v. Univ. of Kan. Med. Ctr., 24 F.Supp.2d 1169, 1174 (D.Kan.1998); see also Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 717-18 (2d Cir.1994) (rejecting inference of discrimination or pretext from negative performance review after prior positive reviews); Orisek v. Am. Inst. of Aeronautics and Astronautics, 938 F.Supp. 185, 188 (S.D.N.Y.1996) (same), aff’d, 162 F.3d 1148, 1998 WL 650257 (2d Cir.1998). “To hold otherwise would be to hold that things never change, a proposition clearly without a basis in reality.” Shabat v. Blue Cross Blue Shield, 925 F.Supp. 977, 988 (W.D.N.Y.1996) (internal quotations and citation omitted), aff’d, 108 F.3d 1370, 1997 WL 138836 (2d Cir.1997). Moreover, the specific action complained of in the tenure review letter, i. e. plaintiffs refusal to serve as concertmaster in the SEK Symphony, occurred after plaintiffs evaluation on March 1, 1999. Accordingly, no reasonable jury could find from plaintiffs prior favorable evaluation that the stated reasons for the negative review letter of May 27, 1999 are a pretext for discrimination.

Plaintiff also claims that PSU’s stated reason that he refused to participate in the SEK Symphony is a pretext for discrimination because other faculty members received positive evaluations even though they participated fewer times in the SEK Symphony. Plaintiff, however, was the only faculty member who was required, to serve as concertmaster in the SEK Symphony. Even if PSU unfairly required only one professor to participate regularly in the SEK Symphony, PSU imposed such a requirement before it hired or even interviewed plaintiff. See Notice Of Vacancy, Exhibit AA to Plaintiff’s Decl. (Doc. # 133). Accordingly, the requirement cannot be a pretext for national origin discrimination.

Plaintiff has not offered evidence from which a reasonable jury might conclude that defendant’s stated reasons are unworthy of credence. Therefore the Court sustains defendant’s motion for summary judgment as to plaintiffs claim of disparate treatment based on the second year tenure review letter dated May 27, 1999.

2. Plaintiff’s Performance Appraisal Dated March 1, 2000

Plaintiff argues that PSU discriminated by giving him a negative performanc