ORDER

VINING, Senior District Judge.

The plaintiff's Motion to Exceed Page Limitation and Correct Record Testimony [Doc. No. 300] is GRANTED; the defendants' Motion for Leave to Increase Page Limit [Doc. No. 301] is GRANTED.

After making a de novo review of the record and after carefully considering the report and recommendation of the magistrate judge, together with the objections thereto, the court receives it with approval and adopts it as the opinion and order of this court.

SO ORDERED.

Attached is the Report and Recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b), and this Court's Local Rule 72. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within ten (10) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).

The Clerk is directed to submit the Report and Recommendation with objections, if any, to the district court after expiration of the above time period.

IT IS SO ORDERED.

MAGISTRATE JUDGE'S FINAL REPORT, RECOMMENDATION AND ORDER

Part One History of the Case

This is a civil rights employment discrimination case filed pursuant to Title VII of the Civil Rights Act of 1964, as amended ( 42 U.S.C. § 2000e et seq.) (hereinafter "Title VII") by Terry Bozeman (hereinafter "the Plaintiff"), who was employed as the Human Resources Director of Per-Se Technologies, Inc. in the eHealth Solutions Division, against defendants Per-Se Technologies, Inc. and Per-Se Transaction Services, Inc. (hereafter collectively referred to as "Per-Se"), and Per-Se employees Phillip M. Pead (hereafter referred to as "Pead"), Charles Moore (hereafter referred to as "Moore"), and William N. Dagher (hereafter referred to as "Dagher"). In his Second Amended Complaint filed on June 23, 2004 [Doc. 43], the Plaintiff alleges that the defendants violated his civil rights by (1) retaliating against him in violation of Title VII (i.e., causing him to suffer adverse employment actions including threats, harassment, intimidation, humiliation, reduction and/or elimination of job functions, reduction in status and constructive discharge) because of (a) his participation in investigations of alleged discrimination committed by the defendants against other company employees [Doc. 43, ¶¶ 18-19, 21-29], and (b) alleging that Per-Se filed inaccurate required federal employer reports and concealed evidence of its commitment to equal employment opportunity laws from the Government [Id. at ¶¶ 20, 54, 71]; (2) intentionally inflicting emotional distress upon him in violation of Georgia law [Id. at ¶¶ 106-121]; (3) negligently supervising, retaining, and hiring employees in violation of Georgia law [Id. at ¶¶ 122-130]; and (4) violating the Sarbanes-Oxley Act ( 18 U.S.C. § 1514A) by retaliating against him for reporting financial irregularities to the Securities and Exchange Commission ("SEC") [Id. at ¶¶ 131-143].

On July 9, 2004, the defendants filed their Answer to the Plaintiff's Second Amended Complaint [Doc. 48]. In their Answer, Per-Se Technologies, Inc. and Per-Se Transaction Services, Inc. asserted three Counterclaims against the Plaintiff, to wit: (1) damages for computer theft and computer trespass in violation of O.C.G.A. § 16-9-93; (2) conversion; and (3) attorney's fees and expenses of litigation incurred in bringing these Counterclaims.See [Doc. 48, pp. 48-53].

Presently pending before the undersigned are (1) the Plaintiff's February 1, 2006 Motion for Partial Summary Judgment, Brief in Support thereof, Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Doc. 210], and supporting exhibits [Doc. 211] (hereafter referred to as "PX-"), including a copy of the parties' Stipulation of facts (PX-1); excerpts from the depositions of Karen Baker ("Baker Depo.") (PX-2), Dan Swaine ("Swaine Depo.") (PX-3), Charles Moore ("Moore Depo.") (PX-4), William Dagher ("Dagher Depo.") (PX-5), Liesl Rowe ("Rowe Depo.") (PX-6), Jackie Jackson ("Jackson Depo.") (PX-7), Phil Pead ("Pead Depo.") (PX-8), and Kellen Jameson ("Jameson Depo.") (PX-9); and the Plaintiff's Affidavit ("Pl. Aff.") (PX-10). On March 9, 2006, the defendants filed their (2) Response in Opposition to Plaintiff's Motion for Partial Summary Judgment [Doc. 262], including their Response to Plaintiff's Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Doc. 263], and (3) their Notice of Objection to the Plaintiff's Affidavit, and Motion to Strike the Plaintiff's Affidavit with an incorporated Brief in Support thereof [Doc. 261]. On March 23, 2006, the Plaintiff filed his (4) Response to Defendants' Motion to Strike the Plaintiff's Affidavit and Brief in Opposition thereto [Doc. 265], to which the defendants (5) replied on April 10, 2006 [Doc. 276].

Also pending before this Court are (6) Per-Se's February 6, 2006 Motion for Summary Judgment, Brief in Support thereof, and Statement of Material Facts as to Which There is No Genuine Issue to be Tried [Docs. 223, 227]. In addition, on February 6, 2006, defendants Pead, Moore, and Dagher filed individual ((7), (8), (9)) Motions for Summary Judgment and Briefs in Support thereof [226, 229, 225, 230, 224, 231]. The defendants also filed a joint Appendix in Support of their Motions for Summary Judgment [Doc. 228] with supporting exhibits (hereafter referred to as "DX-"), including the deposition excerpts of Terry Bozeman ("Pl. Depo.") (DX-1), William Dagher ("Dagher Depo.") (DX-2), Charles Moore ("Moore Depo.") (DX-3), Kellen Jameson ("Jameson Depo.") (DX-4), Karen Baker ("Baker Depo.") (DX-5), Dan Swaine ("Swaine Depo.") (DX-6), Jennifer Bender ("Bender Depo.") (DX-7), Liesl Rowe ("Rowe Depo.") (DX-8), Tracy Fried ("Fried Depo.") (DX-9), and Patrick Coleman, M.D. ("Coleman Depo.") (DX-10); the declarations of Dan Swaine ("Swaine Decl.") (DX-11), Maria Dress ("Dress Decl.") (DX-12), Karen Baker ("Baker Decl.") (DX-13), Matthew Myers ("Myers Decl.") (DX-14), and Kellen Jameson ("Jameson Decl.") (DX-15); Plaintiff's Responses to Defendant Per-Se Technologies, Inc.'s Amended First Interrogatories to Plaintiff (DX-16); and the Plaintiff's Responses to Defendant Per-Se Technologies, Inc.'s First Request for Admissions (DX-17).

Subsequent thereto, (10) the Plaintiff filed his February 21, 2006 Response to defendants Moore, Dagher, and Pead's individual Motions for Summary Judgment and Brief in Opposition thereto [Doc. 237], his March 15, 2006 Memorandum in Response to the Defendants' Motions for Summary Judgment [Doc. 255], Responses to Defendants' Statement of Material Facts as to Which There is No Genuine Issue to be Tried [Doc. 257], and his own Statement of Material Facts in Support of the Denial of Defendants' Motions for Summary Judgment [Doc. 256], and (11) his February 24, 2006. Cross-Motion for Summary Judgment as to Per-Se Technologies, Inc.'s Counterclaim, Brief in Support thereof, and Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Docs. 240-1, 240-2].

On March 20, 2006, (12) the defendants filed a Motion to Strike Plaintiff's Cross-Motion for Summary Judgment with respect to Defendant Per-Se Technologies, Inc.'s Counterclaim, and Brief in Support thereof [Docs. 259-1, 259-2], and (13) their Response in Opposition to the Plaintiff's Cross-Motion for Summary Judgment (as to Defendant Per-Se Technologies, Inc.'s Counterclaim) [Doc. 260]. On March 23, 2006, (14) the Plaintiff filed his Response to Defendants' Motion to Strike his own Cross-Motion for Summary Judgment and Brief in Opposition thereto [Doc. 264], to which (15) the defendants replied on April 10, 2006 [Doc. 277]. Furthermore, (16) on April 7, 2006, the defendants filed their Response to Plaintiff's Statement of Material Facts in Support of Denial of Defendants' Motions for Summary Judgment [Doc. 275], and (17) their Reply Briefs in Support of their Motions for Summary Judgment [Docs. 274, 271, 272, 273].

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

PER-SE'S MOTION FOR SUMMARY JUDGMENT

In their joint Motion for Summary Judgment (hereinafter "MSJ"), Per-Se contends that (I) the Plaintiff cannot make out a prima facie case of retaliation under Title VII and Sarbanes Oxley because (a) he has failed to establish that he suffered any actionable adverse employment action, (b) he has failed to establish that his alleged protected activity contributed to Per-Se's employment actions, and (c) Per-Se would have taken the same actions against the Plaintiff even in the absence of the Plaintiff's alleged protected activity. In addition, Per-Se further contends that (II) it had legitimate, nondiscriminatory reasons ("LNDR") for its employment actions; (III) the Plaintiff cannot show that Per-Se's legitimate, nondiscriminatory reasons for its employment actions were pretexts for retaliation; (IV) the Plaintiff's Title VII retaliatory hostile work environment claim fails as a matter of law because he has failed to establish a hostile work environment; (V) the Plaintiff's constructive discharge claim fails because his working conditions were not so intolerable that a reasonable person would have felt compelled to resign; (VI) the Plaintiff cannot make out a prima facie case of intentional infliction of emotional distress against Per-Se pursuant to state law because, inter alia, he failed to: (a) show that Per-Se engaged in "extreme or outrageous" conduct, (b) show that he suffered severe emotional distress, and (c) establish Per-Se's liability for its employees' actions under a theory of respondeat superior; and (VII) the Plaintiff cannot make out aprima facie case of negligent retention in violation of Georgia state law.

PEAD, MOORE, AND DAGHER'S MOTIONS FOR SUMMARY JUDGMENT

In his Motion for Summary Judgment, Moore contends that (I) the Plaintiff's intentional infliction of emotional distress claim fails because the Plaintiff, inter alia, failed to (a) show that Moore engaged in any "extreme or outrageous" conduct against the Plaintiff, and (b) show that he suffered severe emotional distress [Doc. 230].

PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT AS TO PER-SE TECHNOLOGIES, INC.'S COUNTERCLAIM

In support of their respective positions, the parties have submitted, inter alia, their Statements of Disputed and Undisputed facts as required by Local Rule 56.1(B), N.D.Ga., from which properly supported material facts of this matter are culled. The defendants have filed Statements of Material Undisputed Facts [Docs. 227, 229, 230, 231] in support of their Motions for Summary Judgment, and the Plaintiff has filed his Responses to their Statements of Material Facts as to Which There are No Genuine Issues to be Tried [Doc. 257]. The Plaintiff has also filed a Statement of Material Facts in support of the denial of defendants' Motions for Summary Judgment [Doc. 256], and the defendants have filed their Response to the Plaintiff's Statement of Material Facts [Doc. 275]. In addition, the Plaintiff filed his Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Doc. 210] in support of his Motion for Partial Summary Judgment, and the defendants have filed their Response to Plaintiff's Statement of Material Undisputed Facts [Doc. 263].

In SubPart I, this Court sets out the Undisputed Facts as drawn from the defendants' Statements of Material Facts as to Which There are No Genuine Issues to be Tried to the extent that the Plaintiff has not properly disputed these facts. To the extent that they are not duplicative or disputed by the defendants, in SubPart II, this Court sets out the Plaintiff's Facts as Drawn from his Statements of Material Facts. This Court must deem admitted those facts in the party's statement that are uncontroverted by the opposition. LR 56.1 B(2) NDGa. In SubPart III, this Court sets out the Disputed Facts. To the extent possible, except for clarity, this Court will use the parties' own wording.

I. The Undisputed Facts Id Id inter alia Id Id inter alia Id Id Id Id Id Id Id Id Id Id Id Id inter alia Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id inter alia, Id Id Id Id Id Id Id Id Id Id Id Id Id Id inter alia Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id. Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id Id

II. The Plaintiff's Statement of Material Facts Id Id Id Id Id Id Id Id Id Id

I. The Standard for Review

Pursuant to Fed.R.Civ.P. 56(c), this Court must grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The moving party has the burden of showing the absence of a genuine issue as to any material fact. This Court must view any materials submitted in favor of the motion in the light most favorable to the non-moving party in deciding motions for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed.2d 142 (1970); Knight v. Baptist Hospital Hosp. of Miami, Inc., 330 F.3d 313 (11th Cir. 2003); Clark v. Coats Clark, Inc., 929 F.2d 604 (11th Cir. 1991).

Once the moving party has made this showing, the burden of going forward shifts to the non-moving party to show the presence of a disputed material fact. The non-moving party cannot create a disputed issue of fact by his pleadings, but rather must file a response which includes, or at least refers to, affidavits, declarations, depositions, or similar credible evidence showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997); Worsham v. Provident Companies, Inc., 249 F.Supp.2d 1325, 1330 (N.D. Ga. 2002).

In making its determination as to whether there exists a genuine issue of material fact, this Court is not authorized to weigh the relevant evidence and make credibility determinations.Stewart v. Booker T. Washington Ins., 232 F.3d 844, 850 (11th Cir. 2000); McKenzie v. Davenport-Harris Funeral Homes, 834 F.2d 930, 934 (11th Cir. 1987). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Anderson, 477 U.S. at 247-49). Instead, a genuine issue of material fact only exists if there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict in its favor. Anderson, 477 U.S. at 248; Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000); Thornton v. E.I. Du Pont De Nemours and Co., 22 F.3d 284, 288 (11th Cir. 1994). Where the legal issue is one on which the movant would bear the ultimate burden of proof at trial, the movant must show

affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial. In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party. If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the non-moving party, in response, come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.

This Court will use these gauges to measure whether either party is entitled to summary judgment as a matter of law.

II. PER-SE IS ENTITLED TO SUMMARY JUDGMENT ON THE PLAINTIFF'S TITLE VII RETALIATION CLAIM.

Title VII's anti-retaliation provision forbids an employer from "discriminat[ing] against" an employee or job applicant because the individual "opposed any practice" made unlawful by Title VII or "made a charge, testified, assisted, or participated in" a Title VII proceeding or investigation." See 42 U.S.C. § 2000e-3(a). The Plaintiff contends that Per-Se retaliated against him for engaging in protected activity (i.e., opposing unlawful employment practices and filing an EEOC complaint) in violation of Title VII by, inter alia, demoting him in his supervisory responsibilities and job duties, excluding him from senior management meetings, denying him a salary increase, and depriving him of earned vacation days. In addition, the Plaintiff contends that he suffered an adverse job action when the defendants subjected him to retaliatory harassment, to wit: his co-workers and supervisors ostracized him and Moore threatened him on two occasions and subjected him to verbal abuse. Finally, the Plaintiff contends that he suffered an adverse employment action when he was ultimately constructively discharged by Per-Se.

The ultimate question in the Plaintiff's retaliation claims is whether Per-Se retaliated against the Plaintiff by taking the foregoing actions because he engaged in protected activity. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407, 418 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The Plaintiff bears the initial burden of establishing a prima facie case of retaliation. Burdine, 450 U.S. at 254; Pace v. Southern Ry. Sys., 701 F.2d 1383 (11th Cir. 1983), cert. denied, 464 U.S. 1018 (1983), 104 S. Ct. 549, 78 L. Ed. 2d 724 (1983). A plaintiff may make out a prima facie case of retaliation in several different ways, depending on the facts of the specific case. McDonnell Douglas Corp. v. Green, 411 U.S. at 802, n. 13, 93 S. Ct. 1817, 36 L.Ed. 2d 668; Jones v. Gerwens, 874 F.2d 1534, 1539 (11th Cir. 1989). As the Plaintiff has presented no direct evidence of an unlawful motive for Per-Se's actions, he must make out a prima facie case using circumstantial evidence. McDonnell Douglas, 411 U.S. at 802.

Once the Plaintiff makes the necessary prima facie showing, the burden of going forward shifts to Per-Se to present evidence that it took its actions for a legitimate non-discriminatory reason ("LNDR"). Young v. General Foods Corp., 840 F.2d 825 (11th Cir. 1988), cert. denied, 488 U.S. 1004, 109 S. Ct. 782, L. Ed. 2d 774 (1989). The fact that a plaintiff makes out a prima facie case of retaliation does not preclude a grant of summary judgment for an employer. Wall v. Trust Co., 946 F.2d 805 (11th Cir. 1991); Brown v. American Honda Motor Co., 939 F.2d 946, 950 (11th Cir. 1991). Despite the presumption against using summary judgment to resolve the "elusive factual question" of discriminatory intent, Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 921 (11th Cir. 1993), a defendant may present such strong evidence of a non-discriminatory rationale that summary judgment is warranted. Brown, 939 F.2d at 946; Grigsby v. Reynolds Metals Co., 821 F.2d 590, 596 (11th Cir. 1987).

If Per-Se proffers credible, non-discriminatory reasons for its actions that are sufficiently probative, then the Plaintiff must come forward with specific evidence demonstrating that the reasons given by Per-Se are mere pretexts for retaliation. Brown, 939 F.2d at 946. Although the Eleventh Circuit has recently held that the evidence used by a Title VII plaintiff to establish the prima facie case may, standing alone, suffice to create a disputed issue of fact as to pretext, Hairston, 9 F.3d at 921, the Plaintiff still bears the burden of establishing pretext by presenting some probative evidence thereof to avoid summary judgment. Young, 840 F.2d at 828-831. Furthermore, throughout the proceedings, the burden of persuasion always remains with the Plaintiff, who has the obligation of showing that he was a victim of retaliation.St. Mary's, 125 L.Ed.2d at 416, 419.

A. The Plaintiff has failed to make out a prima facie case of retaliation.

Generally, when relying on circumstantial evidence, a plaintiff establishes a prima facie case of retaliation under Title VII by showing that (1) he engaged in protected activity; (2) simultaneously therewith or subsequent thereto, he suffered an adverse employment action; and (3) some causal connection exists between the protected activity and the adverse employment action.Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000); Morgan v. Jasper, 959 F.2d 1542, 1547 (11th Cir. 1992).

Here, Per-Se concedes that the Plaintiff engaged in covered protected activities when he filed an EEO complaint and opposed certain unlawful employment practices. Consequently, the Court infers that the Plaintiff has met this element. Rather, Per-Se contends that the Plaintiff cannot show that he suffered any adverse employment actions or any causal connection between his protected activities and the adverse employment actions that he alleges.

1. The Plaintiff did not suffer an adverse employment action.

Per-Se contends that the Plaintiff has failed to show that the events supporting his claims rose to the level of an adverse employment action. The U.S. Supreme Court recently clarified that the Plaintiff "must show that a reasonable employee would have found the challenged action materially adverse," which means "it well might have `dissuaded a reasonable worker from making or supporting a charge of discrimination.'" (i.e., an objective standard) Burlington Northern Santa Fe Railway Co. v. White, ___, U.S. ___, ___, 126 S.Ct. 2405, 2414-15, 165 L.Ed.2d 345, 2006 WL 1698953, at *10 (U.S. June 22, 2006) (No. 05-259) (citations omitted). The Supreme Court further stated that it "phrase[d] the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances."Id. at *11. Specifically, the Supreme Court stated:

A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children . . . A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an act that would be immaterial in some situations is material in others . . .

[T]his standard does not require a reviewing court or jury to consider the nature of the discrimination that led to the filing of the charge. Rather, the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged actions and the perspective of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.

The Eleventh Circuit has also held that a mere de minimis inconvenience, when viewed objectively, is not actionable. Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001) (collecting cases) (quoting 42 U.S.C. § 2000e-2(a)); see Doe v. DeKalb County Sch. Dist., 145 F.3d 1441, 1453 (11th Cir. 1998);see also Hinch v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000); Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) (noting that not everything that makes an employee unhappy is an actionable adverse action, otherwise, "every trivial personnel decision that an irritable . . . employee did not like would form the basis of a discrimination suit"). As this Circuit has repeatedly noted, "Title VII is neither a general civility code nor a statute making actionable the ordinary tribulations of the workplace." Davis, 245 F.3d at 1239 (citations and quotations omitted).

Although Title VII does not require proof of direct economic consequences, for purposes of showing an adverse employment action, the alleged impact on an employee must be more than speculative. Id.; Doe, 145 F.3d at 1449. "[T]he employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances." Burlington Northern, supra; Davis, 245 F.3d 1239;see also Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1233-34 (11th Cir. 2006).

Here, the Plaintiff contends that Per-Se's conduct, especially when considered in the aggregate, amounts to an adverse employment action against him as a result of his opposition to the defendants' unlawful employment practices, to wit: (a) the defendants reassigned one of his direct subordinates, Tracy Fried, from his supervisory authority; (b) he did not receive a salary increase which he was due in March 2003; (c) the defendants excluded him from senior management meetings and did not include him in the HR organizational chart; (d) the defendants took any accrued vacation hours; (e) the defendants harassed him; and (f) the defendants constructively discharged him. See [Doc. 255, pp. 14-19]. The Plaintiff contends that when viewed collectively, these acts are sufficient to show that he suffered an adverse employment action. As discussed hereinbelow, this Court is compelled to disagree. These actions, whether viewed individually or collectively, simply do not constitute material adverse employment actions such that a reasonable person in the Plaintiff's position would have felt dissuaded from complaining or assisting in complaints about discrimination.

a. The defendants' reassignment of Tracy Fried, denial of a merit salary increase, exclusion of the Plaintiff from senior management meetings and in the February 2003 HR organizational chart, removal of the Plaintiff's accrued vacation hours, and their retaliatory harassment do not constitute adverse employment actions under Title VII.

1. Reassignment of Tracy Fried

The undisputed evidence shows that in March 2003, based on the needs of the facility in Elgin, Illinois that was approved by management to be closed and moved to Lawrenceville, Georgia, Jameson determined that Tracy Fried needed to be specifically assigned to provide direct HR support to senior management for the "Elgin Exchange" project, and he also determined that she should report directly to him in lieu of the Plaintiff for the duration of the project. [Undisputed Facts 55, 60, 87, 88, 89, 90, 91, 92]. The Plaintiff contends, however, that this reassignment caused him to suffer an adverse employment action.

The undisputed evidence shows that the Plaintiff's salary, benefits, and job responsibilities remained the same after this reassignment. [Undisputed Facts 96, 97, 98]. The Plaintiff has failed to present any evidence that the defendants' reassignment of Fried resulted in decreased responsibilities, a demotion to the Plaintiff, diminished the prestige of his position, or in any way impeded his "professional growth or advancement." Doe, 145 F.3d at 1452. Neither did he suffer a loss of pay or benefits. See Davis, 245 F.3d at 1239, 1244 (cautioning that a court should not act as a "super-personnel department" by questioning an employer's business judgment). Indeed, reassignment of job duties is not automatically actionable. See Burlington Northern, 2006 WL 1698953, at *12 (finding reassignment of job duties actionable only because considerable evidence showed that new job responsibilities were more arduous and dirtier whereas old job responsibilities required more qualifications and therefore more prestigious, and was objectively considered a better job for which the plaintiff was resented for by other employees for occupying). But here, the Plaintiff has failed to produce any evidence that the reassignment of Fried from the Plaintiff's supervisory authority affected his status as an employee in any way such that it would deter employees from complaining or opposing unlawful employment practices. Although the Plaintiff may have been subjectively unhappy with his change in responsibilities, he has failed to demonstrate that this change was objectively "adverse." See Collier v. The Clayton County Comm. Service Bd., 236 F.Supp.2d 1345, 1378-79 (N.D. Ga. 2002), aff'd, 82 Fed.Appx. 222 (11th Cir. Sept. 4, 2003) (Table); see also Greene v. Loewenstein, Inc., 99 F.Supp.2d 1373, 1383 (S.D. Fla. 2000) (a transfer to a new position from plant manager to special manager was not an adverse job action, even though the plaintiff no longer supervised others, lost his private office, and was excluded from meetings). As a result, this Court is compelled to conclude that the Plaintiff has failed to present any evidence that he suffered an adverse employment action that a reasonable person would find materially adverse within the meaning of Title VII.

2. Denied Merit Salary Increase

The Plaintiff contends that he did not receive a salary increase to which he was due in March of 2003. [Doc. 255, p. 14]. He further contends that Per-Se's failure to review him in March 2003 deprived him of a tangible economic benefit (i.e., a merit increase). [Doc. 255, p. 15]. The undisputed evidence shows that the Plaintiff was due for an annual performance review in March 2003 for the applicable review period of March 27, 2002 to March 26, 2003. [Undisputed Fact 161]. However, prior to the end of his review period, the Plaintiff went on sick leave and then approved FMLA leave. [Undisputed Fact 162]. He was on sick leave from March 17 to March 26, 2003. [Undisputed Fact 107]. On March 26, 2003, the Plaintiff requested and received leave under the Family Medical Leave Act ("FMLA") from March 26, 2003 with an expected return date of April 29, 2003. [Undisputed Facts 108, 109]. However, the Plaintiff was unable to return on April 29, 2003, and therefore, continued on approved leave until he exhausted his twelve-week FMLA leave on June 18, 2003 [Undisputed Fact 119].

It is also undisputed that each year, in conjunction with the annual performance review process, a supervisor has some discretion to award "merit" pay increases to his or her employees. [Undisputed Fact 164]. The Plaintiff never returned to work after March 14, 2003; and, therefore, never received an annual performance review for the applicable period: March 27, 2002 to March 26, 2003. [Undisputed Fact 166]. Thus, the defendants contend that no determination was ever made as to whether the Plaintiff would receive a merit increase because, pursuant to company policy delaying a performance review for an employee on extended leave until the employee returns to work, the Plaintiff never returned to work. [Undisputed Facts, 163, 165]; (DX-11, ¶ 32).

In addition, the undisputed facts show that the Plaintiff had no entitlement to any merit increase. [Undisputed Fact 164]. "[L]oss of a bonus is not an adverse employment action in a case where the employee is not automatically entitled to the bonus."See Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir. 1996). This Court is compelled to conclude that a reasonable employee would not be dissuaded from making or supporting a charge of discrimination based on this alleged retaliatory act, whether viewed individually or collectively, as the merit increases in this case was, by its very nature, discretionary with the employer, and a reasonable employee may expect that there will always be some employees who will not receive merit increases, whether based on low performance evaluations or for any other reason.

3. Exclusion from senior management meetings and non-inclusion in the HR organizational chart

The Plaintiff contends that his status and privileges were reduced, and he, therefore, suffered adverse employment actions when the defendants excluded him from management meetings and did not include him in a February 2003 HR organizational chart. Specifically, the Plaintiff contends that he was excluded from senior management meetings in retaliation for his expressed opposition to the defendants' unlawful employment actions. (Pl. Depo., [Doc. 292, p. 183]). In this regard, the undisputed evidence shows that in March 2003, in an effort to limit those present at the meetings to only those individuals necessary to effectuate the purpose of the meeting, Dagher made the decision to stop automatically inviting an HR representative and other managers to all division meetings. (Dagher Depo., [Doc. 216, pp. 55-56]). As a consequence, on March 13, 2003, Dagher sent his assistant an e-mail directing her to remove the Plaintiff, Moore, and Judy Gallagher from the list of attendees at Per-Se's regular monthly management meetings. (Id. at pp. 54-56, Ex. 10).

Here, the Plaintiff has overstated his case by claiming that he was kept out of management meetings. Indeed, since the Plaintiff went on approved sick leave beginning on March 14, 2003, and thereafter, never returned to work at Per-Se's offices, it is unclear as to whether he was actually excluded from any meetings. Furthermore, he has provided no information regarding what was discussed at those meetings or why his attendance was required. In addition, and most notably, the very person the Plaintiff contends harassed him and engaged in unlawful employment practices (i.e., Moore) was also removed from attending the management meetings. [Undisputed Fact 173]. Moreover, the Plaintiff has failed to produce any evidence that his absence from these meetings impacted his ability to do his job. The lack of any such evidence is fatal to his assertion that his exclusion from these meetings was a material adverse employment action. See Parkins v. Civil Constructors of Illinois, 163 F.3d 1027 (7th Cir. 1998).

As previously stated, "Not everything that makes an employee unhappy is actionable adverse action under Title VII." Doe, 145 F.3d at 1449 (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Likewise, "[a]n employment action . . . is not adverse merely because the employee dislikes it or disagrees with it." Collier, 236 F.Supp.2d at 1378 (citation omitted); see also Puffy v. Paper Magic Group, Inc., 265 F.3d 163, 167-68 (3rd Cir. 2001) (holding that numerous actions by employer, including exclusion of plaintiff from regularly conducted seminars and committee meetings, may have caused "stress and discomfort on the job" but did not constitute adverse employment action in age discrimination suit); Rogers-Libert v. Miami-Dade County, 184 F.Supp.2d 1273, 1285-86 (S.D. Fla. 2001) (granting summary judgment in employer's favor; excluding plaintiff from necessary meetings, even when combined with other negative actions, was not adverse or retaliatory; citing Dekalb County School Dist., 145 F.3d at 1449); Greene, 99 F.Supp.2d at 1382-83, n. 17 (granting summary judgment for employer where plaintiff alleged transfer was an adverse action based on proof that he had been forced to share his office and had been excluded from regularly scheduled meetings).

In the present case, Dagher made a determination to stop inviting the Plaintiff, as well as two other employees, to the management meetings. Moore, one of the employees Dagher decided to stop inviting, is the very employee the Plaintiff alleges harassed and retaliated against him for opposing unlawful employment practices. As a consequence, this Court is compelled to conclude that a reasonable employee would also not be dissuaded from making or supporting a charge of discrimination based on this alleged retaliatory act, whether viewed collectively or individually.

The Plaintiff further contends that his removal from a February 2003 HR organizational chart by Tracy Fried, considered in the aggregate, establishes an adverse action. However, the Plaintiff has failed to produce any evidence that this chart was ever implemented, that anyone other than Fried and Jameson saw it, that it caused him to suffer a loss of pay or benefits, or that it caused him to suffer a change in status. Furthermore, although these indignities may have humiliated the Plaintiff, they did not amount, either individually or collectively, to adverse employment actions.See Ware v. Billington, 344 F.Supp.2d 63, 72-73 (D.D.C. 2004). Put simply, "a `bruised ego' is not enough."Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

4. Removal of his accrued vacation hours

The Plaintiff also contends that his accrued vacation hours were taken away after he opposed unlawful employment practices. He also states that other Per-Se employees who did not oppose discriminatory practices did not suffer the same loss of accrued vacation benefits. However, the Plaintiff has failed to produce any evidence in support of this allegation; and, in fact, there is no evidence in the record that he was treated any differently than any other Per-Se employee. See [Undisputed Fact 180]. Rather, the evidence shows that the Plaintiff exhausted his paid sick leave and vacation leave while he was on sick leave and FMLA leave from March 17 to June 18, 20003 pursuant to company policy. [Undisputed Facts 107, 108, 109, 110, 113, 117, 175, 176, 177, 178, 179, 180]. Furthermore, the fact that the Plaintiff disagreed with or disliked company policy is insufficient to constitute an adverse action. See Mallardi v. Brown, 987 F.Supp. 893, 915 (M.D. Ala. 1997).

5. Retaliatory harassment.

With regard to the Plaintiff's retaliatory harassment claim, he alleges the following: (1) he was ostracized by his co-workers and supervisors, (2) he was threatened by Moore on two occasions, and (3) Moore subjected him to verbal abuse. Specifically, the Plaintiff contends that he was ostracized by his co-workers, including, inter alia, Swaine, Jameson, Dagher, and Baker. (Pl. Depo., [Doc. 292, pp. 186-88]). In support of this contention, the Plaintiff relies on various [identified and unidentified] employees' alleged statements to him [on unspecified dates] that they were instructed [by identified and unidentified employees] not to speak to him, and that inaccurate information about him was being discussed with these [unidentified] employees. See [Disputed Facts 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34].

In addition, the Plaintiff contends that Moore physically and verbally threatened him. More particularly, as previously noted, the first threat allegedly occurred in early 2002 after the Plaintiff made a presentation to a group of senior managers regarding compensation, employment statistics, and various personnel-related matters. (Pl. Depo., [Doc. 292, pp. 257, 262]). The Plaintiff claims that after this meeting, Moore was "very irate" and "screaming." (Id. at p. 258). The Plaintiff further contends that Moore said words to the effect of "shut your GD mouth" and "mind your own business." (Id. at pp. 259-60).

The second threat allegedly occurred in the Fall of 2002 after a management conference dinner at a Mexican restaurant. (Id. at pp. 235-37, 244, 262). The Plaintiff claims that after this dinner, Moore approached him about some work he was doing in Moore's office and said words to the effect of "that he needed to be careful and keep his mouth shut," "the plaintiff could ruin his career or that [Moore] could ruin the plaintiff's career," that he needed to be quiet or he would regret it," and something about "whipping his ass." (Id. at pp. 236, 245-47, 249).

What courts have recognized is that conduct which does not involve job actions such as firing or demotion may nonetheless constitute actionable retaliation "provided [it is] severe enough to amount to adverse employment action, the classic example being constructive discharge . . . or severe harassment itself." Heuer v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir. 2000). "An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience." Burlington Northern, 2006 WL 1698953, at *10 (citing 1 B. Lindemann P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (stating "courts have held that personality conflicts at work that generate antipathy and snubbing by supervisors and co-workers" are not actionable under § 704(a)). A claim for retaliatory harassment, like other types of harassment, still requires proof of harassing acts so severe or pervasive that they altered the terms and conditions of the Plaintiff's employment. Id.; see generally Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal citations and quotation marks omitted); Gupta, supra. Requiring a plaintiff to prove that the harassment was severe and pervasive ensures that Title VII does not become a "general civility code." Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

Generally, the courts have held that shunning or ostracism by co-workers and supervisors is insufficient to sustain a retaliation claim. See Wu v. Thomas, 996 F.2d 271, 273 n. 3 (11th Cir. 1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1543, 128 L.Ed.2d 195 (1994) ("we cannot find any case that clearly established that retaliatory harassment, as opposed to sexual or racial harassment, could violate Title VII where the employer caused the employee no tangible harm, such as loss of salary, benefits or position") Williams v. City of Kansas City, 223 F.3d 749, 754 (8th Cir. 2000) (supervisor's "silent treatment is at most ostracism, which does not rise to the level of an actionable adverse employment action"); Monday v. Waste Management of North America, Inc., 126 F.3d 239, 243 (4th Cir. 1997), cert. denied, 118 S.Ct. 1053 (1998) (yelling at the employee and telling others to ignore and spy on her does not constitute an adverse employment action); Metcalf v. Metropolitan Life, Inc., 961 F.Supp. 1536, 1544 (D. Utah 1997) ([b]eing treated "almost contemptuously" by fellow employees, the "isolation treatment," and publicly criticizing an employee's work performance without just cause does not constitute adverse employment action by an employer); Scusa v. Nestle USA Co., Inc., 181 F.3d 958, 969-70 (8th Cir. 1999) ("general allegations of co-worker ostracism" are not actionable); Reynolds v. Golden Corral Corp., 106 F.Supp.2d 1243, 1255 (M.D. Ala. 1999) (shunning and not speaking to the plaintiff did not support harassment claim); Kortan v. California Youth Auth., 217 F.3d 1104, 1112 (9th Cir. 2000) (finding that a supervisor who reacted to plaintiff's complaint about him by being less civil, staring at her in a hostile fashion, and being more critical of her performance did not constitute an adverse employment action within the meaning of Title VII); Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) ("[M]ere ostracism by co-workers does not constitute an adverse employment action") (citation omitted);Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998) (terms and conditions of plaintiff's employment were not affected by co-workers' shunning).

Furthermore, even if shunning was actionable under the Eleventh Circuit standards, the Plaintiff has failed to establish that he was shunned or ostracized because of his protected activity, as opposed to some lawful factor, such as his co-workers simple dislike for him. Moreover, the Plaintiff's allegations of threats by Moore are, likewise, devoid of any evidence that the Plaintiff's protected activity was the motivating factor behind Moore's alleged actions. In addition, there is no evidence that Moore possessed the authority or apparent authority during the period in which these events transpired to affect the terms of the Plaintiff's employment.Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1553 (11th Cir. 1997).

Indeed, the Plaintiff has failed to cite to any legal authority in which a court found "severe or pervasive" retaliatory harassment based on events similar to those alleged here. A thorough review of the case law has revealed that courts have refused to find actionable retaliation based upon a "totality of the circumstances" far greater than that at issue here. See Silk v. City of Chicago, 194 F.3d 788 (7th Cir. 1999) (in evaluating a retaliation claim brought under the ADA, the court found that verbal harassment regarding a plaintiff's medical condition, ridicule from fellow co-workers, threats of physical violence, lowered performance evaluations, loss or modification of earned days of leave, and the denial of supervisory authority did not rise to the level of a materially adverse employment action). As a result, Plaintiff's retaliatory claim based on harassment, whether viewed individually or collectively, is insufficient to support an adverse employment action as the Plaintiff has failed to show that the alleged actions were severe or pervasive enough to constitute actionable harassment under Title VII or to dissuade employees from opposing unlawful employment practices.

B. Per-se Has Produced Evidence of Legitimate Nondiscriminatory Reasons (LNDR) for its Employment Actions.

Assuming arguendo that the Plaintiff had made out aprima facie case of retaliation in violation of Title VII, the burden of going forward would shift to Per-Se to produce evidence of a legitimate, nondiscriminatory reason ("LNDR") for its actions.Young, 840 F.2d at 825. Here, Per-Se has articulated legitimate, nondiscriminatory reasons for its actions.

First, with regard to the reassignment of Tracy Fried, the undisputed evidence shows that at the time of the Plaintiff's employment with Per-Se, the eHealth Division operated a facility in Elgin, Illinois. [Undisputed Fact 55]. As the HR Director for eHealth, the Plaintiff was responsible for providing HR support to the Elgin Exchange. [Undisputed Fact 56]. The Elgin Exchange was responsible for processing all company claims transactions, and was therefore, a "critical piece" in Per-Se's business operations. [Undisputed Fact 57]. The senior manager with overall responsibility for the Elgin Exchange was Senior VP John George and the second manager in charge was VP Mubarak Chouhdry. [Undisputed Fact 59]. In late 2002 and early 2003, the eHealth Division was contemplating shutting down the Elgin Exchange and moving its operations to its Lawrenceville, Georgia location. [Undisputed Fact 60]. If the Elgin Exchange was closed, it would result in a substantial reduction in force at the Elgin Exchange. [Undisputed Fact 63]. As a result, in early 2003, the Elgin facility was experiencing "a lot of turmoil" with its employees and several HR-related issues needed to be addressed. [Undisputed Fact 64].

In late 2002 and early 2003, Tracy Fried, an HR assistant who reported to the Plaintiff, started providing regular HR support to Elgin managers as they dealt with the HR issues associated with the possibility of closing the facility and in the Plaintiff's absence from the facility. [Undisputed Fact 65]. By early 2003, senior managers in charge of the Elgin Exchange (i.e., George and Chouhdry) started to rely primarily on Fried for HR support to Elgin because their concerns were not being addressed by the Plaintiff. [Undisputed Fact 66]. In addition, by early 2003, Fried was traveling to Elgin to provide HR support at least twice a month. [Undisputed Fact 67]. Although Fried became the exclusive provider of HR support for the Elgin Exchange, she was still being supervised by the Plaintiff. [Undisputed Fact 68]. Senior managers in charge of the Elgin Exchange (i.e., George and Chouhdry) were dissatisfied with the lack of HR support they received from the Plaintiff, and they believed that he was an obstacle to the excellent support they were receiving from Fried. [Undisputed Fact 69]. By early 2003, George and Chouhdry were "bombarding" Jameson about a "crisis" at the Elgin Exchange because of "all kinds of personal issues." [Undisputed Fact 70]. George and Chouhdry informed Jameson that when Fried spent some time in Elgin, "the temperature of the office just cooled down instantaneously." [Undisputed Fact 72]. However, George and Chouhdry further informed Jameson that the Plaintiff continued to be an obstacle to Fried, precluding her from providing the support they needed. (Id.)

On January 27, 2003, George sent an e-mail to Jameson in which he (1) expressed his dissatisfaction with the Plaintiff's support of the Elgin Exchange; and (2) requested that Jameson allow Fried to provide support to Elgin. [Undisputed Fact 73]. On January 29, 2003, Chouhdry sent an e-mail to Jameson noting that "HR issues [would] continue to be a challenge" as the Elgin project moved forward, and requested that Fried be permitted to provide HR support for the Elgin Exchange. [Undisputed Fact 74]. By March 2003, based on complaints he was receiving from the senior managers at Elgin and other managers, Jameson concluded that the Plaintiff's responsiveness to senior management was seriously deficient. [Undisputed Fact 75]. Jameson determined that the Plaintiff was increasingly non-responsive to management, was difficult to find, was often missing from the workplace, and was becoming an obstacle to HR support to Elgin. (Id.) Meanwhile, Jameson also concluded that Fried was doing a "wonderful job" of "diffusing a time bomb" situation in Elgin. (Id.)

On March 4, 2003, George sent another e-mail to Jameson complaining about the Plaintiff's lack of responsiveness with regard to a situation taking place with an employee who had been terminated (i.e., Corine Morrow). [Undisputed Fact 82]. Subsequently, on the next day, Chouhdry sent an e-mail to the Plaintiff describing his dissatisfaction with his support to the Elgin Exchange. [Undisputed Fact 83]. On March 10, 2003, Chouhdry sent another e-mail to Jameson regarding his dissatisfaction with the Plaintiff's support to the Elgin Exchange. [Undisputed Fact 86]. Based on these complaints and the fact that the Elgin project was granted final approval, Jameson determined that Fried needed to be fully committed to assisting George and Chouhdry for the duration of the Elgin project, and that she would report directly to him in lieu of the Plaintiff. [Undisputed Facts 87, 88, 89, 90, 91, 92].

Second, with regard to the alleged denial of a merit increase in March 2003, the undisputed facts show that pursuant to Per-Se's standard company practice, when an employee is on an extended leave of absence, the employee's annual review is delayed until the employee returns to work. [Undisputed Fact 163]. Upon the employee's return to work, the employee is given a performance review, and if the employee is recommended for a merit pay increase, Per-Se's regular practice is to retroactively grant such a merit pay increase. [Undisputed Fact 165]. The Plaintiff was on approved sick and FMLA leave from March 17 to June 18, 2003. [Undisputed Facts 107, 108, 109, 119]. The Plaintiff was scheduled to return to work from his approved leave of absence on July 1, 2003. [Undisputed Fact 142]. However, the Plaintiff failed to report; and, on July 3, 2003, the Plaintiff telephoned Swaine and advised him that he would not be returning to work at Per-Se. [Undisputed Fact 158]. The Plaintiff never returned to work after March 14, 2003; and, therefore, in accordance with Per-Se's policy, he never received an annual performance review for the applicable period of March 27, 2002 to March 26, 2003. [Undisputed Fact 166]. Therefore, Per-Se contends that it was never required to make a determination as to whether the Plaintiff would receive a merit increase. (DX-11, ¶ 32). In short, as he never returned to work, Per-Se never had the opportunity to either grant or deny the Plaintiff an annual increase.

The Plaintiff contends that pursuant to Per-Se policy, supervisor's review their subordinates one year from the date of the employee's last review; and therefore, the Plaintiff should have been reviewed by Per-Se in March of 2003. He further contends that Per-Se's failure to review him in March 2003 deprived him of a tangible economic benefit. [Doc. 255, p. 15]. Although the Plaintiff failed to present any credible evidence that reviews always take place exactly one year from the date of the last review, even if this Court accepts Plaintiff's allegation as true, Per-Se would not have been ordinarily required to review the Plaintiff until March 22, 2003 (i.e., one year from his last review of March 22, 2002). However, at that time, he was already on approved sick leave.See [Doc. 214, Ex. 3]; [Undisputed Fact 107]. Therefore, the Plaintiff has failed to present any evidence disputing the foregoing company policy and disproving that when an employee is on an extended leave of absence, his annual review is delayed until he returns to work. [Undisputed Fact 163]. Since the Plaintiff never returned to work after March 14, 2003, he was never entitled to have his review, and Per-Se, therefore, never had the occasion to make a determination as to whether he would receive a merit increase for the applicable year.

Moreover, the Plaintiff has failed to identify any similarly situated employees who did not oppose unlawful employment practices at Per-Se that were given merit increases while they were on extended leaves of absence. Thus, he has failed to present any evidence that Per-Se enforced its policies exclusively against him in retaliation for his complaints. "When an employer applies its standard policies in a nondiscriminatory manner, its action is not objectively adverse." Cotton, 434 F.3d at 1234 (citation omitted); see also Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684 (8th Cir. 2001) (no adverse employment action where policy applied to all employees). Furthermore, when he was due for a review, the Plaintiff neither complained to his supervisor that he had not yet received his review, nor reported this issue to Per-Se management. Indeed, he offered no evidence that he subjectively viewed Per-Se's failure to conduct his review as an adverse action. Id. Therefore, this Court is compelled to conclude that the Plaintiff has failed to demonstrate a genuine issue as to whether he suffered an adverse employment action based on Per-Se's denial of a merit increase to which he may have been entitled.

Likewise, with regard to the Plaintiff's claim that he was denied accrued vacation time, the undisputed evidence shows that the Plaintiff was out of work because of a sickness from March 17 to March 26, 2003. [Undisputed Fact 107]. On March 26, 2003, the Plaintiff asked Per-Se for permission to take FMLA leave, which Per-Se approved, effective March 26, 2003. [Undisputed Facts 108, 109]. On April 14, 2003, Swaine sent the Plaintiff a letter noting that his request for FMLA leave had been approved beginning on March 26, 2003 with an expected return date of April 29, 2003; and that, pursuant to company policy, he would be required to use all vacation and sick benefits concurrently with his FMLA leave, and after such benefits were exhausted, any remaining leave would be unpaid. [Undisputed Fact 110].

It is undisputed that while the Plaintiff was on approved FMLA leave, he was, pursuant to company policy, required to use accrued vacation and sick leave. [Undisputed Fact 175]. On June 18, 2003, the Plaintiff exhausted his twelve-week FMLA leave. [Undisputed Fact 119]. On May 23, 2003, the Plaintiff sent a letter to Swaine requesting a copy of all of Per-Se's records regarding his paid vacation and sick days since his hire date. [Undisputed Fact 176]. In response, Swaine accumulated all relevant data in Per-Se's possession and created a detailed analysis of the Plaintiff's earned vacation and sick leave since his hire date, which he provided to the Plaintiff. [Undisputed Facts 177, 178]. The Plaintiff did not respond to Swaine's letter, and never contacted Swaine to contest Swaine's analysis. [Undisputed Fact 179]. Moreover, it is undisputed that the Plaintiff cannot identify any other employee (i.e., a comparator) who "left the company on or after July 2003 [who] got vacation pay for an extent that [the Plaintiff] did not." [Undisputed Fact 180]. As previously stated, "[w]hen an employer applies its standard policies in a nondiscriminatory manner, its action is not objectively adverse." Cotton, 434 F.3d at 1234 (citation omitted); see also Sowell, 251 F.3d at 684 (no adverse employment action where policy applied to all employees). Thus, the Plaintiff has failed to present any credible evidence that Per-Se enforced its policies against him in retaliation for his complaints.

Finally, with regard to Dagher's decision to no longer automatically include the Plaintiff in senior management meetings, the undisputed evidence shows that prior to his resignation, the Plaintiff would normally only attend management meetings that would "require HR's presence" or any meeting "that they needed someone to be able to consult HR about various things." [Undisputed Fact 167]. Prior to March 2003, the eHealth Division management team had discussed the fact that its management meetings had become unduly large, cumbersome, and needed to be downsized for efficiency. [Undisputed Fact 168]. The form and substance of the management meetings was changing and updates, marketing, human resources, and certain sales aspects were no longer routinely needed thereat since the focus of the meetings had shifted to a "focus on updating numbers and executing on those numbers to the company [CEO] and [CFO]." [Undisputed Facts 169, 170]. Thus, Dagher made the decision to remove these areas from the meeting in or about March 2003. [Undisputed Facts 169, 170, 172]. Indeed, in 2005, the meetings were down to four participants, as opposed to twelve (as in the past). [Undisputed Fact 168].

It is further undisputed that on March 13, 2003, Dagher sent an e-mail to his administrative assistant directing her to remove the Plaintiff, Moore, and Judy Gallagher, an employee in the Accounting Department, from the list of attendees at the company's monthly management meetings. [Undisputed Fact 173]. Moreover, the Plaintiff testified that he is not aware "whether HR was represented at all at future meetings" after he resigned from the company. [Undisputed Fact 174].

Thus, Per-Se has shown that it took the foregoing employment actions against the Plaintiff for legitimate nondiscriminatory reasons (LNDR). This Court finds that Per-Se's evidence is sufficient to meet its relatively light burden of production. In short, Per-Se has articulated legally sufficient legitimate non-discriminatory reasons for its employment actions. Thus, the burden of going forward returned to the Plaintiff to produce evidence of pretext.

C. The Plaintiff has Failed to Create a Disputed Issue of Fact that Per-Se's Legitimate, Nondiscriminatory Reasons (LNDR) were Pretexts for Retaliation.

Once Per-Se has articulated legitimate non-discriminatory reasons for its employment actions, the Plaintiff must demonstrate, or at least create a disputed fact, that the reason proffered by the employer was not the true reason for the employment decision and that Per-Se's true reason was unlawful retaliation. St. Mary's, 509 U.S. at 502, (quoting Burdine, 450 U.S. at 256). The burden of proving that the employer's unlawful reason, in fact, was the true reason for the Plaintiff's adverse employment action, devolves upon the Plaintiff at trial. Id. Therefore, to withstand summary judgment, a plaintiff need only present evidence that the defendant's articulated reason is not credible, as a "rejection of the defendant's proffered reason will permit the trier of fact to infer the ultimate fact of intentional discrimination." St. Mary's, 509 U.S. at 502 (emphasis provided); Combs, 106 F.3d at 1519; Richardson v. Leeds Police Dep't, 71 F.3d 801 (11th Cir. 1995); Cooper-Houston v. Southern Ry. Co., 37 F.3d 603 (11th Cir. 1994); Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir. 1994); Batey v. Stone, 24 F.3d 1330 (11th Cir. 1994). The Plaintiff may meet his burden by (a) presenting evidence that Per-Se's proffered reason is not worthy of belief, from which a jury could infer that retaliation was the real reason, or (b) by presenting evidence that retaliation was, in fact, the real reason. St. Mary's, 509 U.S. at 502, Howard, 32 F.2d at 520.

In attempting to show pretext, however, a plaintiff may not recast an employer's legitimate, non-discriminatory reason or substitute his business judgment for that of the employer, but instead must meet each reason head on and rebut it.Chapman, 229 F.3d at 1030. As previously noted in numerous decisions, the Court's role is not that of an employer's super-personnel department. Consequently, "it is not the court's role to second-guess the wisdom of an employer's decisions as long as the decisions are not motivated [by race or some other impermissible factor]." Id., (quotingAlexander v. Fulton County, Ga., 207 F.3d 1303, 1341 (11th Cir. 2000)); see Combs, 106 F.3d at 1523.

Here, the Plaintiff has not squarely challenged the legitimacy of the LNDR offered by Per-Se. In fact, he has not offered any additional evidence to support his contentions other than his imagination and his interpretation of events from the prima facie case. This Court is, of course, obliged to view the Plaintiff's evidence in the light most favorable to him. Nevertheless, this Court concludes that the Plaintiff's evidence is insufficient to create a disputed issue of fact as to pretext. See Chapman, 229 F.3d at 1030. It must be emphasized that an employer has the right to make an employment decision for a multitude of reasons: It can be for the right reason, for the wrong reason, or for no reason. The employer is only prohibited from taking an adverse job action for an impermissible reason. Indeed, it may even make a mistake as to the basis of the reason. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984), reh. den., 747 F.2d 710 (1984).

The Plaintiff contends that Per-Se's LNDR is pretextual because statements made by management-level employees demonstrate retaliatory animus; and, thus, create an issue of fact as to the pretextual nature of Per-Se's LNDR. Specifically, the Plaintiff relies on statements allegedly made by Swaine, Moore, Wood, and various (unidentified) employees, and an e-mail from Dagher, which he contends shows that Per-Se wanted him terminated from his employment with Per-Se. See [Doc. 255, pp. 32-34]. However, the Plaintiff has failed to show how any of these statements, as he asserts, suggests retaliatory animus by the alleged speaker. For example, the Plaintiff contends that, in response to his opposing unlawful employment practices, Swaine advised him to "let things go" and that he "would only be hurting himself and his career by openly opposing employment practices that might get the company in trouble." [Id. at p. 32; Plaintiff's Fact 5]. This Court fails to see how this alleged statement even remotely suggests retaliatory animus on the part of the defendants or in any way creates a disputed issue of fact as to the defendants' LNDR. Furthermore, this speculative statement amounts to nothing more than a stray remark under the facts of this case, and does not constitute evidence of retaliation. Indeed, there is no evidence in the record that Swaine, Moore or Wood were in any way related to or were decisionmakers with respect to the alleged retaliatory employment actions taken by Per-Se against the Plaintiff. In fact, with regard to the alleged threats by Moore [Doc. 255, p. 33], it is undisputed that the Plaintiff did not report directly to Moore, and that Moore had no authority to take personnel actions with respect to the Plaintiff. [Undisputed Fact 13]. Accordingly, statements by these non-decisionmakers unrelated to the decisional process at issue are not sufficient to satisfy the Plaintiff's burden of demonstrating that the defendants' proffered reasons were pretexts for retaliation. See Steger v. General Electric Co., 318 F.3d 1066, 1079 (11th Cir. 2003) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring)); Rowell v. BellSouth Corp., 433 F.3d 794, 802 (11th Cir. 2005); Mitchell v. USBI Co., 186 F.3d 1352, 1355 (11th Cir. 1999) (managers' statements did not constitute circumstantial evidence of discrimination where the managers were non-decisionmakers, especially where the comments were ambiguous) (citing Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1326 (1998) (statement by non-decisionmaker was not probative of discriminatory intent)).

In short, this Court is compelled to conclude that the Plaintiff's evidence and his subjective interpretation of events could not convince a reasonable factfinder to reject Per-Se's reasons for its employment actions or conclude that retaliation was its real reason. Viewing all of the evidence in the light most favorable to him, the record in the present case is bereft of evidence from which a rational factfinder could infer that Per-Se retaliated against the Plaintiff for opposing unlawful employment practices. Consequently, Per-Se is entitled to summary judgment on the Plaintiff's Title VII retaliation claim for the additional reason that the Plaintiff has failed to show or create a disputed material fact that Per-Se's LNDR is a pretext for retaliation.

III. PER-SE IS ENTITLED TO SUMMARY JUDGMENT ON THE PLAINTIFF'S TITLE VII RETALIATORY CONSTRUCTIVE DISCHARGE CLAIM.

The Plaintiff contends that Per-Se retaliated against him for engaging in protected activity, which resulted in his constructive discharge. 42 U.S.C. § 2000e-3(a) prohibits retaliation by an employer against an employee who engages in protected activity. See Durley v. APAC, Inc., 236 F.3d 651, 657 (11th Cir. 2000). As such, the Plaintiff must first establish his prima facie case of retaliation. Here, it is undisputed that the Plaintiff engaged in protected activity, however, the Plaintiff contends that he suffered an adverse employment action when the defendants constructively discharged him. The "threshold for establishing constructive discharge . . . is quite high," higher than that for proving a hostile work environment. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001), cert. denied, 534 U.S. 1127, 122 S.Ct. 1064, 151 L.Ed.2d 968 (2002); see also Beltrami v. Special Counsel, Inc., 2006 WL 279238, at *1 (11th Cir. Feb. 7, 2006) (No. 05-12164). Specifically, if an employer deliberately makes an employee's working conditions so intolerable that no reasonable employee could be expected to endure it (compelling the employee to involuntarily resign), the employer is "as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee." Doe, 145 F.3d at 1450.

In order to establish a constructive discharge claim using circumstantial evidence, the Plaintiff must prove: (1) that his working conditions were so intolerable that no reasonable person could be expected to endure them; (2) that the intolerable working conditions were a product of conduct that violated Title VII; (3) that Per-Se was responsible for the intolerable working conditions; and (4) that his involuntary resignation resulted therefrom. See Kilgore v. Thompson Brock Mgmt., 93 F.3d 752, 754 (11th Cir. 1996); Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993), cert. denied, 512 U.S. 1221, 114 S.Ct. 2708, 129 L. Ed. 2d 836 (1994); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1317 (11th Cir. 1989). In short, the Plaintiff must offer proof that the employer intentionally rendered his working conditions so difficult, unpleasant or intolerable that he was compelled to quit involuntarily because a reasonable person in his shoes would have felt compelled to resign. See Poole v. Country Club, Inc., 129 F.3d 551, 553 (11th Cir. 1997); Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1530 (11th Cir. 1985). Nevertheless, the Plaintiff has an obligation not to assume the worst or to jump to conclusions too fast. See Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987). Therefore, courts generally require the aggrieved employee to give the employer sufficient time to remedy the allegedly intolerable situation before leaving his job. See id.

Here, the Plaintiff has presented the same alleged retaliatory actions as above in an effort to establish that his working conditions were intolerable. However, the only evidence of hostility that the Plaintiff presented that was directed at him are the two alleged incidents involving Moore's alleged isolated threats, which incidents occurred almost nine months to a year prior to his resignation. Furthermore, on June 27, 2003, the Plaintiff attended a meeting with Swaine, Jameson and Dagher regarding his return to work from his three-month approved leave of absence, and he advised him that he was ready to return to work and wanted to return to work the following business day. Swaine, however, replied that he needed more time to prepare Per-Se employees for the Plaintiff's return to work. Therefore, they decided that he would return to work on July 1, 2003. [Undisputed Facts 135, 141, 142]. Moreover, the undisputed evidence shows that the Plaintiff was advised at this meeting that Per-Se had reassigned Moore from his former position as GM of the Cleveland location to a position that would not require him to interact with the Plaintiff. [Undisputed Facts 126, 139]. More importantly, the Plaintiff continually advised them that he intended to return to his employment with Per-Se. [Undisputed Facts 117, 118, 121, 135, 150, 152, 153]. However, the Plaintiff testified that, after this meeting, he did not feel comfortable that the alleged harassment was going to stop despite assurances the defendants had given him that it would not take any retaliatory actions against him. (Pl. Depo., [Doc. 292, pp. 68-69]; Swaine Depo., [Doc. 219, pp. 99, 137-38, Exs. 5-6]; Swaine Decl., [Doc. 228, ¶¶ 20, 22]); [Undisputed Facts 132, 134, 143, 148, 149]. As previously stated, the Plaintiff had an obligation not to assume the worst, and not to jump to conclusions too fast (i.e., that he would be subjected to harassment). Garner, supra. Courts do not consider the Plaintiff's subjective feelings, but rather, rely on a reasonable person's standard; and, because the employer eliminated virtually all of the conduct about which the Plaintiff complained, it was unreasonable for the Plaintiff to assume the worst (i.e., that he would again be subjected to harassment). See McDaniel v. Merlin Corp., 2003 WL 21685622, at *1 (N.D. Ga. 2003) (No. 1:01CV2992JEC) (adopting J. Feldman's R R); Smith v. Akstein, 408 F.Supp.2d 1309 (N.D. Ga. 2005).

While the Plaintiff has presented evidence of alleged working conditions he considered unpleasant, he has failed to show that Per-Se subjected him to working conditions that were so hostile and pervasive that a reasonable person would have found them intolerable. See Beltrami, 2006 WL 279238, at *1 (where employee was given a list of allegedly extremely difficult work objectives to accomplish within 30 days, and employer's intent was to terminate him when he did not complete the objectives, working conditions were not so intolerable as to establish a retaliatory constructive discharge claim); Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974, 977-78 (11th Cir. 2003) (affirming the district court adopting J. Feldman's R R) (being reprimanded and hearing from coworkers of management's intent to fire him were insufficient to show constructive discharge); Wardett v. School Bd. of Palm Beach County, FL, 786 F.2d 1554, 1558 (11th Cir. 1986) (holding that employer's failure to promote and added workload were insufficient to a constitute constructive discharge); Booze v. Branstetter, 912 F.2d 801, 804-06 (5th Cir. 1990) (holding that unwarranted criticism, poor performance evaluation, probation and withdrawal of responsibilities did not constitute a constructive discharge as a matter of law). Neither has he shown that he suffered any adverse actions at the time that the alleged events were occurring. Furthermore, the Plaintiff's constructive discharge claim fails for the additional reason that he has failed to put forth any evidence that the defendants wanted him to quit. See Cross v. Southwest Recreational Indus., Inc., 17 F.Supp.2d 1362, 1376 (N.D.Ga. 1998). Instead, the undisputed evidence shows that Per-Se continued to communicate with the Plaintiff while he was on approved leave, and coordinated and prepared for him to return to work. [Undisputed Facts 111, 112, 114, 115, 120, 121, 122, 125, 132, 134, 141, 142, 143, 148, 149, 157]. See Smith, 408 F.Supp.2d at 1332-33 (no constructive discharge where the plaintiff failed to present evidence that it was his employer's purpose for employee to resign).

Viewing the evidence in the light most favorable to the Plaintiff, this Court is compelled to conclude that the Plaintiff's evidence does not show that the alleged conduct was so severe or pervasive enough to support a finding of constructive discharge. Simply put, there are no allegations of harsh treatment; and, even if the Plaintiff could demonstrate he was subjected to harsh treatment, Title VII does not shield employees against harsh treatment in the workplace. McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986); Hellums v. Webster Indus., Inc., 97 F.Supp.2d 1287, 1297 (M.D.Ala. 2000) ("hurt feelings are insufficient as proof of constructive discharge"). Since the Plaintiff has failed to prove that his workplace was "permeated with discriminatory intimidation, ridicule and insult," he is not entitled to Title VII relief.Harris, 510 U.S. at 21, 114 S.Ct. at 370.

Although alleged ostracism by employees and harassment by Moore may have subjectively upset the Plaintiff, he has not proven that their conduct crossed the line and allegedly forced him to resign, thus establishing a Title VII violation. Hipp, 252 F.3d at 1231; Cross, 17 F.Supp.2d at 1376. Rather, the evidence is clear that the Plaintiff remained employed by Per-Se while in a leave status for several months after he voiced complaints of retaliation and financial irregularities; and the defendants only considered him to have resigned his employment when it became clear that he did not intend to return to work at Per-Se. Farley, 115 F.3d 1548, 1555 (termination after months on leave when it became clear that plaintiff would neither return nor accept another position was not retaliatory or discriminatory in nature). Consequently, Per-Se is entitled to summary judgment on the Plaintiff's Title VII constructive discharge claim.

IV. PER-SE, PEAD, AND DAGHER ARE ENTITLED TO SUMMARY JUDGMENT ON THE PLAINTIFF'S SARBANES-OXLEY RETALIATION CLAIM.

The Plaintiff attempts to state a cause of action against defendants Per-Se, Pead, and Dagher under the Sarbanes-Oxley Act of 2002 ("SOX") ( 18 U.S.C. § 1514A). Specifically, the Plaintiff contends that the defendants retaliated against him (and subsequently constructively discharged him) after he had advised the defendants that he had contacted the Securities and Exchange Commission ("SEC") in March 2003 with his concerns regarding the defendants' involvement in alleged financial irregularities at Per-Se. (S.A. Compl., [Doc. 43, ¶¶ 136, 138, 139, 141, 142]).

SOX ("Section 806") provides "whistleblower" protection to employees of publicly traded companies. Under this provision, a public company (or agent of a public company) may not discriminate against any employee who "provide[s] information, causes[s] information to be provided, or otherwise assist[s] in an investigation" concerning conduct that the employee "reasonably believes constitutes a violation of . . . any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders."See 18 U.S.C. § 1514A(a)(1).

"Before an employee can assert a cause of action in federal court under the Sarbanes-Oxley Act, the employee must file a complaint with [OSHA] and afford OSHA the opportunity to resolve the allegations administratively." Willis v. VIE Financial Group, Inc., 2004 WL 1774575, at *6 (E.D. Pa. Aug. 6 2004) (No. 04-435); see also 18 U.S.C. § 1514(b)(1)(A). The administrative complaint must be filed "[w]ithin 90 days after an alleged violation of the Act" and must include "a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations." Id., § 1514A(b)(2)(D); 29 C.F.R. § 1980.103(b, d). If the employee meets these requirements for a particular violation, and a final administrative decision has not issued within 180 days of the filing, the employee is authorized to proceed with an action in federal court based on that violation (i.e., no further exhaustion of administrative remedies is required). 18 U.S.C. § 1514A(b)(1)(B); Willis, 2004 WL 1774575, at *3; Murray v. TXU Corp., 279 F.Supp.2d 799, 802 (N.D. Tex. 2003).

A. The Plaintiff has failed to show that he exhausted his administrative remedies with respect to his SOX claims asserted against Pead and Dagher.

A federal court "can only conduct a `de novo review' of those [SOX whistleblower] claims that have been administratively exhausted." Willis, 2004 WL 1774575, at *6 (holding that plaintiff's failure to raise an administrative complaint with OSHA precluded raising that claim in district court); see also McClendon v. Hewlett-Packard Co., 2005 WL 2847224, at * 2-4 (D. Idaho Oct. 27, 2005) (No. 05-087-S-BLW) (holding that a district court can only conduct a "de novo review" of those claims that have been administratively exhausted); Hanna v. WCI Communities, Inc., 348 F.Supp.2d 1322, 1324, 1329 (S.D. Fla. 2004) (under the "de novo review" provided by SOX, "district courts are able to consider the merits of a plaintiff's whistle-blower [administrative] complaint as if it had not been decided previously") (internal quotation omitted); Murray, 279 F.Supp.2d at 802 (district court lacks subject matter jurisdiction over Section 806 claim if plaintiff has failed to comply with administrative procedures). The Plaintiff has failed to sufficiently allege (or persuasively argue) that he has satisfied Section 806's exhaustion requirement with respect to his claims against Pead and Dagher. See Makorova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ("A plaintiff asserting subject matter jurisdiction had the burden of proving by a preponderance of the evidence that it exists.").

While the regulations implementing SOX may provide for individual liability, that does not obviate the need for the Plaintiff to exhaust his administrative remedies for each claim he seeks to assert against each defendant. In the present case, the Plaintiff filed an administrative complaint with OSHA on August 4, 2003 naming only Per-Se Technologies, Inc. as the Respondent. [Doc. 256, Ex. 10]. As the Plaintiff did not specifically name Pead and Dagher in the OSHA proceedings, he, thus, failed to exhaust his administrative remedies with respect to them. See Hanna v. WCI Communities, Inc., 2004 U.S. Dist. LEXIS 25652, at *7-9 (S.D. Fla. Nov. 15, 2004) (dismissing SOX claim against individual defendant not named as respondents in plaintiff's OSHA complaint). The Plaintiff contends that Dagher and Pead are covered by the administrative complaint he filed with OSHA because they are identified as actors in his complaint, and were, therefore, on notice as to the claims against them. This Court disagrees and finds the Plaintiff's arguments uncompelling.

In Hanna, the district court specifically rejected the same arguments that the Plaintiff here attempts to persuade this Court to accept. Specifically, the district court in Hanna was faced with a Motion to Dismiss filed by an individual defendant arguing that the plaintiff's SOX claim asserted against him was barred for failure to file an administrative complaint specifically naming him as a party, even though he was identified in the administrative complaint as an actor involved in the plaintiff's termination. Id. at * 7. The district court agreed that merely mentioning the individual defendant in the body of the administrative complaint as an actor, rather than naming him in the heading of the administrative complaint, is insufficient, and failed to afford OSHA the opportunity to resolve the plaintiff's allegations through the administrative process. Id. at *8. More important, the district court stated, "Even if the court assumed that [the individual defendant] was placed on notice that he had allegedly violated the law, that notice has no consequence as to whether OSHA was placed on notice that it was required to investigate [the individual defendant's] actions in this case." Id. Therefore, OSHA was never provided an opportunity to issue a final decision within 180 days of the plaintiff filing his administrative complaint. Id. at *9.

Likewise, in the present case, the Plaintiff never provided OSHA with an opportunity to issue a final decision within 180 days of his filing his administrative complaint as to the claims he raises against Pead and Dagher because he failed to specifically name them in the heading of his administrative complaint. In fact, the Plaintiff failed to even mention Pead in his OSHA complaint, and the mere fact that Dagher is mentioned in the body of the OSHA complaint is insufficient. See [Doc. 256, Ex. 10]; Hanna, supra. Thus, the Plaintiff has failed to exhaust his administrative remedies as to his SOX claims asserted against defendants Pead and Dagher. Accordingly, defendants Pead and Dagher are entitled to summary judgment as to the Plaintiff's SOX claims asserted against them.

B. The Plaintiff has failed to make out a prima facie case of a violation of SOX against Per-Se.

To assert a whistleblower claim under SOX, the Plaintiff "must show by a preponderance of the evidence that (1) [he] engaged in protected activity; (2) the employer knew of the protected activity; (3) [he] suffered an unfavorable personnel action; and (4) circumstances exist to suggest that the protected activity was a contributing factor to the unfavorable action."Collins v. Beazer Homes USA, Inc., 334 F.Supp.2d 1365, 1375 (N.D. Ga. 2004) (citations omitted); see also Fraser v. Fiduciary Trust Co. Int'l, 417 F.Supp.2d 310, 322 (S.D.N.Y. 2006) (quoting Collins for these four factors); Bishop v. PCS Administration, Inc., 2006 WL 1460032, at *1 (N.D. Ill. May 23, 2006) (No. 05-C-5683) (citing Collins for these four factors); 18 U.S.C. § 1514(A)(b)(2)(C) (action brought under [SOX] "shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, [U.S.] Code."). The defendant may avoid liability if it can demonstrate by clear and convincing evidence that it "would have taken the same unfavorable personnel action in the absence of [protected] behavior" (i.e., a legitimate nondiscriminatory reason [LNDR]).Collins, 334 F.Supp.2d at 1375-76 (quoting 49 U.S.C. § 42121(b)(2)(B)(iv)).

SOX protects employees who provide information, which the employee "reasonably believes constitutes a violation" of any SEC rule or regulation. 18 U.S.C. § 1514A(a)(1); Collins, 334 F.Supp.2d at 1376. While a plaintiff need not show an actual violation of law by his employer, or cite a code section he believes was violated, "general inquiries . . . do not constitute protected activity." Id.; Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 931 (11th Cir. 1995); see also Lerbs v. Buca Di Beppo, Inc., 2004-SOX-8, 2004 DOLSOX LEXIS 65, at *33-34 (Dep't Labor June 15, 2004) ("[I]n order for the whistleblower to be protected by [SOX], the reported information must have a certain degree of specificity [and] must state particular concerns, which, at the very least, reasonably identify a respondent's conduct that the complainant believes to be illegal.") (citing Bechtel, 50 F.3d at 931); Bishop, 2006 WL 1460032, at *5 ("An employee can engage in § 1514A protected activity even if the reported conduct did not actually constitute a violation of one of the laws or regulations enumerated in § 1514A(a)(1)."). Protected activity must implicate the substantive law protected in Sarbanes-Oxley "definitively and specifically." American Nuclear Res., Inc. v. United State Dep't of Labor, 134 F.3d 1292, 1295-96 (6th Cir. 1998). It is sufficient that "the individuals to whom [the complaints] were addressed understood the serious nature of [the employee's] allegations." Collins, 334 F.Supp.2d at 1377-78.

Here, the parties do not dispute that the Plaintiff engaged in protected activity when he complained of financial irregularities to the SEC in March 2003, and that Per-Se was made aware of the Plaintiff's protected activity. [Plaintiff's Facts 23, 24]. Rather, Per-Se contends that the Plaintiff has failed to make out a prima facie case of retaliation under SOX for the same reason that his Title VII retaliation claim fails: he has failed to present any evidence to show that he suffered any adverse employment action. In addition, Per-Se contends that the Plaintiff's SOX retaliation claim fails because he cannot show that his protected activity contributed to the alleged adverse employment actions taken by Per-Se against him. Moreover, Per-Se contends that even if the Plaintiff could establish a prima facie case of retaliation in violation of SOX, it is still entitled to be granted summary judgment on this claim for the additional reason that it would have taken the same employment actions even in the absence of the Plaintiff's protected activity (i.e., a mixed motive case).

1. The Plaintiff did not suffer an unfavorable personnel action.

The Plaintiff alleges he suffered an unfavorable personnel action after he complained about financial irregularities to the SEC in March 2003 when his working conditions were made so intolerable that he felt compelled to resign on July 3, 2003 (i.e., he was constructively discharged) [Doc. 43, ¶¶ 141, 142]. As previously mentioned, complaints alleging SOX whistleblower violations must be filed with OSHA within 90 days of an alleged violation of the statute. 18 U.S.C. § 1514A(b)(2)(D); Murray, 279 F.Supp.2d 799. Because the Plaintiff filed his OSHA complaint on August 4, 2003 [Doc. 256, Ex. 10], any event that occurred before May 6, 2003, happened outside of the 90-day statute of limitations applicable to his SOX claims. Thus, the Plaintiff's attempt to rely on alleged adverse employment actions that occurred prior to May 6, 2003 has been disregarded by this Court as those allegations are time barred.

As previously discussed, the Plaintiff never returned to work at Per-Se's offices after March 14, 2003. [Undisputed Facts 99, 100]. He was on approved sick and FMLA leave from March 17 to June 18, 2003 [Undisputed Facts 107, 108, 109, 119]. As previously noted, on June 27, 2003, the Plaintiff met with Swaine, Dagher and Jameson regarding his return to work after his twelve-week leave of absence. [Undisputed Fact 132]. At that time, they all agreed that the Plaintiff would return to work on July 1, 2003, but, as he drove to work on that date, he changed his mind and never returned to work at Per-Se. [Undisputed Facts 142, 154, 158].

The undisputed evidence also shows that the Plaintiff has failed to establish that he suffered any adverse employment action while he was on approved leave from March 17 to June 18, 2003. Indeed, he was approved for and received his full entitlement of FMLA leave, and was allowed to return to his pre-leave position. [Undisputed Facts 109, 119]. Rather, the Plaintiff solely attempts to rely on a March 17, 2003 e-mail from Dagher to Moore and Jameson telling Jameson to "make sure" that the Plaintiff (as well as two other employees) were "terminated in association with a riff [Jameson] may know of . . ." [Plaintiff's Fact 22]. He also argues that he was met with hostility at the June 27, 2003 meeting with Swaine, Dagher and Jameson. [Doc. 255, p. 43]. However, the mere threat of termination is not an adverse employment action. Van Der Meulen v. Brinker Int'l, 153 Fed.Appx. 649, 655 (11th Cir. 2005) (threat did not in fact cause any objective change in the plaintiff's employment where plaintiff worked for three weeks after the threatening statement);Pennington, 261 F.3d at 1267 (no adverse employment action where the employment decision is rescinded before the employee suffers a tangible harm); see also Israel v. Potter, 2004 WL 574668, at *4 (N.D. Ill. 2004) (No. 02-V-8006); Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002) ("neither the perception of a threat to one's job, nor fear of being fired, nor even the proposed notice of firing constitutes an actionable injury"). Ultimately, the Plaintiff was not terminated. Likewise, the Plaintiff's subjective feelings of hostility by Swaine, Dagher and Jameson at the June 27, 2003 meeting is not an adverse employment action.Van Der Meulen, supra (employee's subjective feelings about employer's actions should not be considered). Thus, the Plaintiff's sole allegation of adverse employment action is based on his claim of constructive discharge. However, for the reasons stated supra, the Plaintiff's constructive discharge claim fails as a matter of law. Accordingly, Per-Se is entitled to summary judgment as to the Plaintiff's Sarbanes-Oxley claims.

C. Per-Se established that it would have taken the same employment actions even in the absence of the Plaintiff's protected activity.

Assuming arguendo that the Plaintiff had made out aprima facie case of retaliation in violation of SOX, Per-Se would still be entitled to summary judgment as to this claim as it has established that it would have taken the same employment actions even in the absence of the Plaintiff's protected activity. Collins, 334 F.Supp. at 1376.

As previously stated, the Plaintiff left work on March 14, 2003 and was on an approved leave of absence from March 17, 2003 to June 18, 2003. [Undisputed Facts 107, 109, 119]. Subsequent to the exhaustion of his twelve-week FMLA leave, Per-Se contacted the Plaintiff and prepared for his return to work by scheduling a meeting for June 27, 2003. [Undisputed Facts 121, 122, 123, 124, 125, 132]. Per-Se even advised the Plaintiff that he was eligible to apply for additional personal leave for a maximum of thirty days if necessary. [Undisputed Fact 120]. The Plaintiff declined the offer stating that he planned to return to work. [Undisputed Fact 121].

At the June 27, 2003 meeting, the Plaintiff agreed to return to work beginning Tuesday, July 1, 2003. [Undisputed Fact 142]. However, on July 1, 2003, while driving to work for the first time since his leave of absence, the Plaintiff changed his mind and never returned to work at Per-Se. [Undisputed Fact 154]. Subsequently, on July 3, 2003, Swaine telephoned the Plaintiff at his residence and left a message stating that he hoped he felt better, and advising him that his FMLA leave had expired and asking him to contact him as soon as possible. [Undisputed Fact 157]. Later that evening, the Plaintiff telephoned Swaine and informed him that he would not be returning to his employment with Per-Se. [Undisputed Fact 158].

Based on this representation, Per-Se considered the Plaintiff to have voluntarily terminated his employment effective that day. [Undisputed Fact 159]. Indeed, Swaine sent the Plaintiff a letter confirming his voluntary resignation and outlining the series of events that had occurred leading up to his voluntary resignation, to which the Plaintiff never responded nor contested. [Undisputed Fact 160]. Thus, the evidence is undisputed that Per-Se, pursuant to company policy, offered the Plaintiff additional leave if necessary, and when the Plaintiff declined its offer, it prepared for his return to work. This is Per-Se's normal procedure even if the Plaintiff had not engaged in protected activity in March 2003. When the Plaintiff advised Per-Se that he would not be returning to work, Per-Se concluded that the Plaintiff had voluntarily resigned from his employment. Thus, Per-Se has shown that it would have taken the same employment actions regarding the Plaintiff in the absence of his protected activity (i.e., he had resigned from his job), and the Plaintiff has declined, failed to refute, or even address in his response. Accordingly, Per-Se is entitled to summary judgment as to the Plaintiff's SOX claims for the additional reason that it has established that it would have taken the same employment actions even in the absence of the Plaintiff's protected activity.

V. THE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE PLAINTIFF'S STATE LAW CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

The Plaintiff alleges that all of the defendants intentionally inflicted emotional distress ("IIED") upon him in violation of Georgia law. To state a prima facie claim of intentional infliction of emotional distress under Georgia law, the Plaintiff must prove four elements: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Northside Hosp. v. Ruotanen, 246 Ga.App. 433, 435, 541 S.E.2d 66 (2000); Bridges v. Winn-Dixie, Inc., 176 Ga. App. 227, 335 S.E.2d 445, 447 (Ga.Ct.App. 1985). Georgia courts have granted summary judgments against plaintiffs who fail to present evidence which creates a disputed issue as to any of the four elements. Gaston v. Southern Bell Tel. and Tel. Co., 674 F.Supp. 347, 352 (N.D. Ga. 1987) (citing Bridges, 335 S.E.2d at 445 and Crowe v. J.C. Penney, Inc., 177 Ga. App. 586, 588, 340 S.E.2d 192 (Ga.Ct.App. 1986)).

Whether a claim rises to the requisite level of outrageousness and egregiousness is a question of law. The termination of the Plaintiff, standing alone, cannot suffice to state a claim of IIED under Georgia law. ITT Rayonier, Inc. v. McLaney, 204 Ga. App. 762, 420 S.E. 2d 610, 612 (Ga.Ct.App. 1992); Borden v. Johnson, 196 Ga. App. 288, 395 S.Ed.2d 628, 630 (Ga.Ct.App. 1990); see also Clark, 990 F.2d at 1229. If the evidence shows that a reasonable person might find the presence of extreme and outrageous conduct resulting in extreme emotional distress, the question must be resolved by a jury. Yarbray v. Southern Bell Tel. Co., 261 Ga. 703, 706(2), 409 S.E.2d 835 (Ga. 1991).

A. The Plaintiff is unable to show that defendant Moore engaged in extreme or outrageous conduct.

To support a cause of action for IIED, the alleged conduct at issue "must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff." See, e.g., Amstadter v. Liberty Healthcare Corp., 503 S.E.2d 877, 880 (Ga.App. 1998). Liability is imposed "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community."Phinazee v. Interstate Nationalese, Inc., 514 S.E.2d 843, 845.

The Plaintiff claims that he was subjected to emotional distress when he was harassed by defendant Moore on several occasions, threatened by Moore on at least two occasions, and caused to suffer various adverse employment actions for opposing unlawful employment practices. (S.A. Compl., [Doc. 43, ¶¶ 108-110, 116-117]); [Doc. 255, p. 54]. Specifically, as previously discussed, the Plaintiff contends that he was subjected to (1) verbal abuse by Moore on numerous occasions, including, inter alia, threats to his job, and (2) at least two physical threats by Moore. [Doc. 255, pp. 52-54]. In addition, the Plaintiff contends that defendants Pead and Dagher ratified Moore's conduct by failing to intervene after the Plaintiff complained about Moore's alleged conduct and harassment. (S.A. Compl., [Doc. 43, ¶¶ 111-115, 118, 121]). This Court, however, is compelled to conclude that the Plaintiff's evidence falls short of creating a disputed issue of fact as to whether the defendants subjected him to conduct that exceeded "all possible bounds of decency."

While a reasonable jury could find that Moore's alleged conduct, if believed, was inappropriate, such conduct simply does not rise to the level of extreme and outrageous conduct. Georgia courts have found far greater mistreatment insufficient to base a claim of IIED thereon. See Moses v. Prudential Ins. Co. of America, 187 Ga.App. 222, 369 S.E.2d 541 (Ga.App. 1988); Durley, 236 F.3d at 654; Hendrix v. Phillips, 207 Ga.App. 394, 394-95, 428 S.E.2d 91, 92-93 (Ga.App. 1993); Fox v. Ravinia Club, Inc., 202 Ga.App. 260, 414 S.E.2d 243 (Ga.App. 1992). For example, inMoses, a former employer left a threatening message on a former employee's answering machine, stating that "you are going to find your butt in court or your neck broken somewhere." 187 Ga.App. at 225, 369 S.E.2d at 543-44. Nevertheless, the Court, considering the language used, the means by which the message was delivered, and the relationship of the parties, found such conduct insufficient to create a cause of action for intentional infliction of emotional distress under Georgia law. Id. The Court observed, "Liability clearly does not extend to mere insults indignities, threats, annoyances, petty oppressions, or other trivialities[;] plaintiffs must certainly be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind." Id., quoting the Restatement (Second) of Torts Ch. 2, Emotional Distress, § 46(1), comment (d); see also Spence v. Panasonic Copier Co., 46 F.Supp.2d 1340, 1350-51 (N.D.Ga. 1999). Simply put, the Plaintiff has failed to supply additional facts suggesting that the conduct to which he was allegedly subjected rose beyond the "insults, indignities, petty oppressions" and the like that fall decidedly below the Georgia standard for IIED.

In support of his contention, the Plaintiff cites Yarbray,supra. Yet this case, rather than bolster the Plaintiff's claim, illustrates that Moore's alleged treatment of the Plaintiff fell well below the standard for outrageous conduct set by Georgia law. In Yarbray, an employee was demoted (i.e., transferred to another position), abused, and physically threatened by her supervisor. Id. However, the transfer in Yarbray was considered outrageous only because it was part of a decision to "deliberately . . . retaliate against [the employee], and to punish her for ignoring its lawyer's admonitions and testifying against the employer, which retaliation included subjecting her to abuse by her supervisor and causing her severe emotional pain." Id. at 838. In addition, the Plaintiff's reliance onYarbray is misplaced as the plaintiff in that case experienced abuse at the hands of her supervisor.

Here, it is undisputed that Moore was not the Plaintiff's supervisor. [Undisputed Fact 13]. As previously shown, Georgia law has ruled that far more egregious conduct than this falls short of the outrageousness necessary to constitute intentional infliction of emotional distress. See Bowers v. Estep, 204 Ga.App. 615, 618, 420 S.E.2d 336, 339 (Ga.App. 1992) (plaintiff failed to state an IIED claim where he alleged he was intentionally harassed, threatened, humiliated, intimidated in the course of his supervisors' inquiries concerning his emotional condition, belittled, and maliciously transferred to another position causing him to take a leave of absence and be admitted to a psychiatric clinic); Jarrard v. U.P.S., Inc., 242 Ga.App. 58, 529 S.E.2d 144 (Ga.App. 2000) (supervisor giving plaintiff a harsh performance evaluation on his first day back from extended psychiatric care and continuing the interview despite plaintiff's tearful requests for a postponement causing him to suffer a complete mental breakdown did not rise to the level of outrageous required for an IIED claim).

Finally, this Court agrees with the Plaintiff that while inappropriate behavior in an employment setting may "produce a character of outrageousness that otherwise might not exist," Coleman v. Housing Auth. of Americus, 191 Ga.App. 166, 381 S.E.2d 303, 306 (Ga.App. 1989), the conduct about which the Plaintiff complains is not sufficiently severe to support a claim of intentional infliction of emotional distress even in an employment setting.

B. The Plaintiff cannot show Moore's conduct caused him severe emotional injury.

Courts have emphasized that the severity consideration requires a showing of distress "so severe that no reasonable man could be expected to endure it." Witter v. Delta Airlines, Inc., 966 F.Supp. 1193, 1201 (N.D. Ga. 1997); see also Gaston, 674 F.Supp. at 353. The defendants' behavior must be so extreme that "the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim `Outrageous!'"Hardin v. City Wide Wrecker Serv. Inc., 232 Ga.App. 617, 502 S.E.2d 548, 550 (1998) (quoting Williams v. Stepler, 227 Ga.App. 591, 594, 490 S.E.2d 167, 170 (1997)).

The Plaintiff relies on his medical records to support his contention that he has suffered severe emotional distress. In this case, the medical records and undisputed evidence reflect that the Plaintiff suffered from depression, anxiety, migraines, hypertension, fatigue, dizziness, panic attacks, nausea, constipation, rectal bleeding and abdominal pain. [Plaintiff's Facts 14, 15, 17, 19]. Although the Plaintiff has presented some evidence that he has suffered emotional distress, the Plaintiff still has the burden of establishing that Moore's alleged behavior proximately caused his injuries. See Phinazee, 541 S.E.2d at 845. "The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it . . . the distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge . . ." Moses, 369 S.E.2d at 544 (citation omitted).

As previously noted, the Plaintiff contends that his medical records support his claim that the defendants caused him to suffer extreme emotional distress due to Moore's extreme and outrageous conduct. However, the only evidence that the Plaintiff's alleged emotional distress was job related were his own self-serving statements to the medical providers when he was treated. More important, Moore's alleged conduct at issue occurred in early 2002 and in or about the Fall of 2002, almost nine months to a year prior to the Plaintiff's resignation in July 2003, and almost six months from the alleged second incident in Fall 2002 to his extended leave of absence in March 2003. (Pl. Depo., [Doc. 292, pp. 235-37, 244-49, 257-262]). Indeed, the Plaintiff did not even seek treatment for his alleged mental injuries until March 2003. [Doc. 286, pp. 25-27, Ex. 1]. This temporal gap between the last alleged threat by Moore and his seeking medical treatment is sufficient to break a causal connection. See Bridges, 176 Ga.App. at 231, 335 S.E.2d at 448 (plaintiff failed to establish requisite causal connection where she acknowledged she did not consult her physician immediately after the incidents complained of). The Plaintiff has failed to present sufficient evidence to attribute any of his alleged emotional distress to Moore's conduct. Because the Plaintiff is unable to satisfy at least one element of a prima facie case, Moore is entitled to summary judgment as to this claim. Part Five Conclusion

In light of the foregoing,

IT IS HEREBY RECOMMENDED that the defendants' Motions for Summary Judgment [Docs. 223, 224, 225, 226] be GRANTED as to all claims asserted against them by the Plaintiff.

IT IS FURTHER RECOMMENDED that the Plaintiff's Motion for Partial Summary Judgment [Doc. 210] be DENIED as moot.

As this Court has found that the Plaintiff has failed to show a violation of federal law,

IT IS HEREBY FURTHER RECOMMENDED that the District Court decline to exercise its supplemental jurisdiction and conduct a trial on the defendants' state law counterclaims. IT IS HEREBY FURTHER RECOMMENDED that the Plaintiff's Motion to Bifurcate the Trial and Brief in Support thereof [Doc. 208] be DENIED as moot.

ORDER

IT IS FURTHER ORDERED that the defendants' Notice of Objection to Plaintiff's Affidavit and Motion to Strike [Doc. 261] is hereby DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Increase Page Limit for Response to Defendants' Motion for Summary Judgment [Doc. 254] is hereby DENIED as moot.

The Clerk of Court is DIRECTED to terminate referral of this action to the undersigned.

IT IS SO RECOMMENDED AND ORDERED.