Opinion
No. 99 C 4530.
February 26, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Gregory L. Mellinger has filed a one-count amended complaint defendant Combined Insurance Co. of America, alleging that defendant discriminated against him on the basis of his gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq. Defendant has filed a Fed.R.Civ.P. 56 motion for summary judgment. For the following reasons, defendant's motion is granted.
FACTS
Plaintiff, a white male, began his career with the insurance industry in approximately 1984 as an insurance agent for a company in Alabama. Within six years, plaintiff worked his way up to regional vice president of that company. In 1990, plaintiff began working for defendant as branch manager for defendant's life insurance division in Alabama. Thereafter, plaintiffs responsibilities in that position expanded to cover both Alabama and Mississippi. In approximately 1993, plaintiff was given the branch manager position in North Carolina, which both he and defendant considered to be a promotion. In approximately 1995, plaintiff was promoted to regional manager of Pennsylvania, Delaware, New Jersey, and Maryland. Plaintiff held this position for about fourteen months. Then, plaintiff was asked to relocate to Chicago, Illinois, to help defendant develop a new "worksite marketing initiative" program as a marketing director. The purpose of this program was for defendant to sell insurance to employees at their employers' places of business. In this position, defendant interviewed potential account executives and trained those who were hired to make sales calls at businesses. The account executive position was an entry level position that required no sales experience.
It was under these circumstances that plaintiff came to work with an account executive by the name of Jenna Birch ("Birch") in mid-August, 1998. Plaintiff was asked to train Birch, who had no sales experience and whom plaintiff considered to be "right out of college," by taking her to a company called Aon so that she could learn to build relationships with the company's personnel. Plaintiff also took Birch to sales calls with prospective clients. These trips often prompted plaintiff and Birch to eat meals together, to travel together, and to stay overnight in hotels.
In late January, 1999, Birch telephoned Nancy Gross ("Gross"), defendant's head of human resources, to complain about plaintiff. Gross asked Birch to put her complaints in writing, and so, on February 1, 1999, Birch sent Gross a letter listing nine complaints about plaintiffs allegedly inappropriate behavior. Birch accused plaintiff of: discussing the intimate details of his marriage with Birch; asking Birch inappropriate questions of a personal and sexual nature; inviting Birch to his hotel room to watch a movie; touching Birch on the neck and shoulders and encouraging Birch to do the same for him; inquiring whether Birch would share a hotel suite with him; asking Birch if she would go to a strip club with him or give him a personal lap dance; and commenting on the appearance of other women in front of Birch. After receiving Birch's complaint, Gross notified Bob Anderson ("Anderson"), plaintiff's supervisor, about the complaint, and the two agreed that Gross should investigate further. Gross kept Anderson constantly appraised of the progress of her investigation.
Gross then contacted Karen Koons ("Koons"), another employee under Anderson, to ask her if she could verify any of Birch's complaints about plaintiff. Following that conversation, Gross wrote a memorandum summarizing her understanding of their conversation. That memorandum states, in part:
[Koons] advised me that on January 14th and 15th, she and [Birch] were together at a meeting of their unit. It was clear to [Koons] that [Birch] was upset. [Koons] spoke to her because she felt bad for her and wanted to help her out of this situation. [Birch] indicated to [Koons] that [plaintiff] is always making sexual remarks, asking [Birch] what she would enjoy sexually, and making a constant barrage of sexually oriented comments. [Koons] indicated that she has observed [plaintiff] behaving in this way to women in general. [Koons] believes [plaintiff] has a real problem and that he needs help. . . .As an example, [Koons said that] one year ago [plaintiff] had lost a lot of weight . . . [and Koons] made a comment to [plaintiff] at that time along the lines of, "Gee . . . you're getting so thin your pants are going to fall down [to which plaintiff responded]," Wouldn't you like to see that happen? [Koons] indicates that [plaintiffs] comments always seem to be sexual in nature.
Gross also spoke to John Boss ("Boss"), the head of the Aon office in Indianapolis, regarding Birch's complaints. Again, Gross wrote a memorandum summarizing her understanding of the conversation that ensued. That memorandum states, in part:
One of [Birch's] friends, Holly Booth ["Booth"], had a similar encounter with [plaintiff]. . . .[Boss] recounted that [Booth] advised him that [plaintiff] was always asking [Booth] out. . . .[Booth] indicated [to Boss] that [plaintiff] would have conversations with her that you would not normally have with a co-worker. [Birch] told [Boss] that when she was training and they traveled together, [plaintiff] would invite her to his room to watch a movie and that sometimes [plaintiff] would ask [Birch] to stay in the same hotel room. [Boss] also indicated that one of his other brokers, a fellow named Dave, told him that when he and [plaintiff] were riding together, [plaintiff] said to him, Drop me off at a local strip club and pick me up later. [Boss] also indicated that he is aware that [plaintiff] routinely asked [Birch] if she wants to go to a strip club. [Boss] believes that last week it just got to be too much for [Birch], that she was crying and didn't know what to do and, therefore, she chose to share her concerns with [Boss].
The next day, February 2, 1999, Gross spoke to Booth and wrote yet another memorandum summarizing her understanding of their conversation, which included the following:
[Booth] indicated she avoids [plaintiff] as much as possible. She does not want to be alone with him. He was always asking her out to dinner. He once asked her to go to a movie with him and she declined. She further indicated [that plaintiff] has wandering eyes and watches women a lot. He has a lot of conversations about his wife . . . [Booth] indicated that women in general were uncomfortable in [plaintiff's] presence. It was common knowledge in the office that one of the [Aon] employees dropped him off at a strip club. They are also aware that another female [a]ccount [r]epresentative in the office was told a sexually explicit joke by [plaintiff]. [Booth] indicated that at no particular coaching [plaintiff] would talk about his personal life in general, that his relationship with his wife wasn't good. There were rumors going around about stories about his behavior. [Booth] also indicates she knows [plaintiffs] desired relationship with her was not all business since he asked her to go to a musical in Indianapolis.
In addition to speaking to these individuals, Gross also reviewed a file kept by defendant that detailed a 1997 investigation that followed a claim of inappropriate comments/actions by plaintiff to the Illinois Department of Human Rights and the Equal Employment Opportunity Commission. That claim, brought by an account executive by the name of Jeannie Messina ("Messina") after she quit working for defendant, was settled out of court following defendant's payment of $23,500 to Messina and her attorney.
On February 8, 1999, plaintiff met with Gross and Anderson. Gross documented the events of that meeting in a memorandum, which plaintiff agrees is a fairly accurate account of what occurred. Gross's memorandum reflects that plaintiff was told about Birch's complaints and was asked whether they were true. Plaintiff denied each and every allegation made by Birch, as well as those made by Booth and Boss. According to Gross' memorandum, plaintiff did admit that he may have told Birch that, "he had not had a hug or kiss from his wife or any affection in a year," and that, "maybe [Birch] interpreted that beyond what he had said." The memorandum also includes plaintiffs complaints to Gross and Anderson that Birch made explicit and off-color comments to him in the past.
Sometime prior to February 9, 1999, Birch contacted the Marriott Hotel in Louisville, Kentucky to get the name of the individual who was working the front desk when she and plaintiff went there together months prior. On February 9, 1999, as part of her ongoing investigation into Birch's complaint, Gross called that individual, Marsha Overstreet ("Overstreet"), to ask her if she recalled plaintiff attempting to convince Birch to share a hotel suite. As with her other interviews, Gross wrote a memorandum containing her understanding of her conversation with Overstreet. That memorandum states, in part:
[Overstreet] remembers that in November 1998[,] . . . the hotel was booked as were all of the other hotels in Louisville due to a big convention in the city. [Overstreet] remembers that [Birch] and [plaintiff] came in at about 6 p.m. in November because she found [plaintiffs] conversation with [Birch] so unusual. She said she was surprised that a man would respond the way he did when he was with a woman he obviously was not marred to, or not dating . . . [T]here were only two suites available in the hotel. Because of the convention, [Overstreet] was in a position to only offer them one room. She advised [Birch and plaintiff] that there was a suite [which] . . . consists of an open bedroom and one bathroom. She advised them that she could put a rollaway bed in the room in order for them to have separate beds. Based upon [Overstreet's] recollection, she indicated that [plaintiff] said immediately, "We'll take the room and that's fine." She said he did not confer with [Birch] or ask if it was okay. She said immediately [Birch] started to protest and said that she didn't want to do this, she needed her own bathroom. [Plaintiff] indicated that he wanted to stay at the Marriott and so he thought it would be fine. [Birch] continued to be adamant that she wanted her own room because she needed to spread out her things and she needed her own bathroom. [Overstreet] recalls [plaintiffs] response as being, "We're here . . . we can stay here." She said after [Birch] was adamant that she wasn't going to do this, [Overstreet] contacted another hotel down the road and made arrangements for them to have separate rooms at a different hotel.
On February 11, 1999, Gross spoke to Janet Josway ("Josway"), an assistant vice president and broker at Aon. Gross's memorandum describing her understanding of this conversation states, in part:
. . .Josway indicated that she is forty years old and married . . . [and that] she can handle herself, She stated that when she picked up [plaintiff] from his hotel, she found his behavior extremely unprofessional when they were alone. She stated the date this occurred was May 12, 1998 . . . [On that day, Josway] picked up [plaintiff] at his hotel. He had never met her before but proceeded to tell her a joke that went as follows. "Why did the hillbilly cross the road . . . his dick was stuck in a chicken." Janet said this joke both offended and surprised her, As the day proceeded, they visited several clients and she felt he was professional in front of the clients. However, throughout the day when traveling by car, he would continuously talk about his not having had sex with his wife for a long time. The impression she got was that he was dropping hints that he needed her to service him. When she dropped him off at his hotel, he gave her a kiss on the cheek. She found this surprising given that she had never met him before and certainly was not his friend. When [Josway] returned to the office, she told [Boss] that she would never ride with [plaintiff] again.
On February 15, 1999, plaintiff called Gross regarding Birch's accusations, As was her practice, Gross wrote a memorandum summarizing her understanding of their discussion. In that memorandum, Gross wrote that plaintiff claimed that Birch had "baited him into certain conversations" which he said were "friendly and they laughed about them," Plaintiff also accused Birch of making complaints against him "because she wants money." Gross requested that plaintiff put his complaints in writing.
The next day, February 16, 1999, plaintiff faxed a four-page letter to Gross which outlined his complaints about Birch, In his letter, plaintiff detailed explicit sexual conversations which Birch had initiated with him regarding a friend of hers who uses sex toys, a friend of hers who visits "underground sex houses," a "sex toy" party she once attended, and her relationship with her boyfriend. Plaintiff also stated in the letter that Birch had invited him to her home and to a bar for a going away party for a colleague of theirs, and that she conditionally invited him to a New Year's party, if her boyfriend could not attend.
On or about February 17, 1999, Gross concluded her investigation and reported the information that she had learned to Anderson. Gross recommended to Anderson that plaintiff be terminated. Anderson agreed, and, on February 17, 1999, Anderson informed plaintiff that he was terminated because defendant felt he was too much of a risk for the company to continue his employment.
When asked if he believed this was the reason he was terminated, plaintiff testified at his deposition that he did, stating that, "[Anderson] did not say in my exit interview, you are guilty, you did these things, we know you're guilty. He said we believe this is a risk we do not want to continue to have." Plaintiff said he felt that there were underlying issues as well, including his compensation and his vocal expression of disagreement with others. Later in his deposition, plaintiff testified further that, "And I believe . . . the whole reason I was terminated is simply because I [am] male." Plaintiff also stated in his deposition that he is not aware of any female employees of defendant who were accused of sexual harassment in previous years.
Gross is aware of one such employee, but, according to her, that employee was terminated as a result of the complaint. Defendant admits that plaintiffs allegations about Birch's inappropriate conduct were never investigated and that Birch did not suffer any adverse employment action as a result of those accusations.
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. See Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).
A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. See Sarsha v. Sears. Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252.
DISCUSSION
Because plaintiff has not offered direct evidence of gender discrimination in responding to this motion, the court focuses entirely on the burden-shifting requirements for Title VII cases set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the burden-shifting approach, the plaintiff must establish a prima facie case by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 505 (1993). The plaintiffs success in establishing a prima facie case creates a rebuttable presumption of discrimination, causing the burden to shift to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994). If the defendant is successful, the presumption of discrimination dissolves, and the burden shifts back to the plaintiff to prove that the defendant's proffered reasons are a pretext for age discrimination. Id. At all times, the plaintiff bears the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against him. See Hughes v. Brown, 20 F.3d 745, 747 (7th Cir. 1994).
I. Plaintiff's prima fade case
Plaintiff's prima facie case must establish the following four elements: (1) certain "background circumstances" exist that support an inference that defendant is one of the unusual employers that discriminates against the majority or that there is a "logical reason" to believe that defendant's decision to terminate plaintiff rests on a legally forbidden ground; (2) plaintiff performed his job satisfactorily; (3) plaintiff was subjected to an adverse employment action; and (4) similarly situated female employees received more favorable treatment than plaintiff. See Ferguson v. Robert R. McCormick Tribune Found., 108 F. Supp.2d 1033, 1038 (N.D. Ill. 2000); Mills v. Health Care Serv. Corp., 171 F.3d 450, 456-457 (7th Cir. 1999). Defendant does not contest that plaintiff performed his job satisfactorily and that he was subjected to an adverse employment action. Thus, only the first and fourth elements of plaintiff's prima facie case are in dispute.
A. Plaintiff's membership in a protected class
Title VII may protect plaintiff even though, as a white male, he is not a member of a historically discriminated-against group. See Mills, 171 F.3d at 454 (citing McDonald v. Sante Fe Trail Transp. Co., 427 U.S. 273, 280 (1976); Greenslade v. Chicago-Sun Times. Inc., 112 F.3d 853, 863 (7th Cir. 1997); Hill v. Burrell Communications Grp., Inc., 67 F.3d 665, 667 (7th Cir. 1995)). Plaintiff's burden is heavier than that of a minority plaintiff, however, since he must overcome "the presumption that it is the unusual employer who discriminates against majority employees." Mills, 171 F.3d at 456-457. Accordingly, plaintiff must establish either that "background circumstances" exist which support an inference that defendant is one of the unusual employers that discriminates against the majority, or he must establish a "logical reason to believe that [defendant's] decision rests on a legally forbidden ground,' such as his . . . gender." Id. at 457 (quoting Carlson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996)).
Plaintiff acknowledges this burden and claims that he has identified "a logical reason to believe that [d]efendant's decision to terminate him rests on a legally forbidden ground." The court, however, has not discovered any such "logical reason," and therefore finds that plaintiff has failed to establish the first element of his prima facie case.
B. Similarly situated female employees received more favorable treatment
To establish this element, plaintiff must point to a similarly situated female employee of defendant who was accused of similar conduct but was not terminated. Ferguson, 108 F. Supp. 2 d at 1039 (citingCampbell v. Dominick's Finer Foods, 85 F. Supp.2d 866, 872 (N.D. Ill. 2000)). Here, plaintiff takes direct aim at Birch. According to plaintiff, because he accused Birch of having behaved inappropriately toward him, and because those allegations were not investigated and she did not suffer any adverse employment action as a result, he has met his burden of proving the fourth element of his prima facie case. Defendant disagrees, arguing that plaintiff cannot use Birch to prove the fourth element because she is not "similarly situated" to plaintiff in terms of her position within the company or in terms of the allegations made against her. The court agrees. Plaintiff cannot show that he is similarly situated to Birch in all relevant respects. See Spath v. Hayes Wheels International-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000).
To begin, Birch and plaintiff held vastly different positions in defendant's company. At the time of the relevant events, plaintiff had approximately fifteen years of experience working in the insurance industry, nine of which he had spent working for defendant as a state-wide branch manager, a regional manager, and finally as a marketing director. In contrast, Birch had approximately two years of experience working in the insurance industry, she had no sales experience, and she had worked in the entry-level position of account executive for defendant for approximately six months when plaintiff made complaints about her conduct. Plaintiff argues that since he was not responsible for hiring, firing or supervising Birch, the two were "essentially peers." The court disagrees, finding that plaintiffs greater experience in the industry and in sales, and his position as "teacher" or "trainer" relative to Birch's position as his "student" or "trainee," placed him in a significantly higher comparative position within the company. This conclusion is bolstered by plaintiffs own admission that he considered Birch to be "right out of college," when clearly he was not.
Birch is also not similarly situated to plaintiff in terms of the complaints that were made against both. As defendant points out, Birch's complaints against plaintiff were unsolicited, whereas plaintiff complained of Birch only after he was confronted with her accusations. Further, the nature of the complaints about plaintiff and Birch differed significantly. Plaintiff complained that Birch raised inappropriate topics of discussion with him, including her friends' sexual preferences and habits and her private relationship with her boyfriend. Plaintiff also complained that Birch invited him to social events (one work-related and one not — but neither of which were inappropriate in nature). While this sort of conduct might likely be looked down upon by an employer, it is not in the same realm as the conduct of which Birch accused plaintiff.
In her February 1, 1999, letter to Gross, Birch accused plaintiff of, inter alia, asking her inappropriate questions of a personal and sexual nature, inviting her to his hotel room to watch a movie, touching her neck and shoulders and encouraging her to touch him in like manner, and inquiring whether she would share a hotel suite with him, go to a strip club with him, and perform a personal lap dance for him. While not the sort of facts the court is used to distinguishing, even the court can see a difference between raising inappropriate topics and asking about, and encouraging a coworker to participate in, sexually explicit conduct. In addition to the differences between the timing and the nature of the complaints made against plaintiff and Birch, defendant also points out the difference in the number of complaints made against plaintiff and Birch. Birch's complaints against plaintiff were not the first such complaints defendant had heard. The Messina investigation had occurred just two years prior and had resulted in defendant's payment of a substantial sum of money to settle a potential sexual harassment claim based on plaintiffs alleged conduct. Conversely, at the time plaintiff accused Birch of inappropriate conduct, no other similar complaints had been made against her.
Plaintiff attempts to use a complaint made against Birch well after he was terminated as proof that she, too, behaved inappropriately multiple times. That complaint, which accused Birch of showing a tatoo on her body to a group of her coworkers at a company event, is not only untimely but it does not rise (or sink) to the level of those made against plaintiff.
For all these reasons, the court does not agree with plaintiff that Birch is similarly situated to him. Based solely on their varying positions within defendant's company, plaintiff and Birch are not similarly situated. See Kause v. Alberto-Culver Co., 2000 U.S. Dist. LEXIS 10986, *22,2000 WL 875742, *7 (N.D. Ill. 2000) (noting that "the employment circumstances of the compared employees" must be "similar in all relevant aspects") (citing United States Equal Employment Comm'n v. Foster Wheeler Constructors, Inc., 1999 U.S. Dist. LEXIS 10993, *16, 1999 WL 528196, *5 (N.D. Ill. 1999)); see also Kennedy v. Schoenberg. Fisher Newman. Ltd., 140 F.3d 716, 726-27 (7th Cir. 1998) (finding attorney plaintiff not similarly situated to other attorneys at the same firm who performed different functions). Indeed, defendant had good reason to hold plaintiff to a higher level of professionalism than Birch. See Hoffman v. MCA. Inc., 144 F.3d 1117, (7th Cir. Ill. 1998) (finding that the defendant could "reasonably expect a higher level of professionalism from [the plaintiff] with less need for supervision than it could expect from less experienced and lower-ranking sales representatives").
In addition, given the differences in the timing, the nature, and the number of complaints against plaintiff and Birch, the two cannot be said to be similarly situated in regard to their allegedly inappropriate conduct. See Johnson v. National R.R. Passenger Corp., 23 F. Supp.2d 909, 913 (N.D. Ill. 1998) (finding the plaintiff not similarly situated to employees who had engaged in different conduct); Kaniff v. Allstate Ins. Co., 121 F.3d 258, 264-65 (7th Cir. 1997) (finding the plaintiff not similarly situated to an employee who had been accused of fewer and less severe instances of misconduct). Thus, plaintiff has failed to establish the fourth element of his prima facie case, that a similarly situated employee was treated more favorably than he.
II. Defendant's legitimate nondiscriminatory reasons for terminating plaintiff and plaintiffs evidence of pretext
Assuming arguendo that plaintiff could establish a prima facie case, the court would nonetheless find that plaintiff has not shown that defendant's proffered reasons for terminating him were a pretext for discrimination pursuant to Anderson, 13 F.3d 1120. Defendant's asserted non-discriminatory reason for terminating plaintiff is that he was seen by both Gross and Anderson as too much of a risk for the company to continue his employment. Thus, defendant's proffer dissolves the presumption that it discriminated against plaintiff, shifting the burden back to plaintiff to prove that defendant's proffered reason is actually pretextual for discrimination. See id. at 1122.
Plaintiff makes two arguments to support a finding of pretext. First he argues that defendant's proffered reason was based on a poor investigation. Second he argues that the fact that his complaints about Birch were not followed up is evidence that his termination was pretextual. The court will address each argument in turn.
The court notes at the outset that plaintiff agreed during his deposition that he was terminated because defendant felt he was too much of a risk for the company. However, because plaintiff later added that he believes that his gender was the sole cause of his termination, the court will proceed. of course, as defendant notes, plaintiffs own subjective belief that he was the victim of unlawful discrimination is not evidence of pretext. Kizer v. Children's Learning
A. Plaintiff's "poor investigation" argument
Plaintiff argues that defendant's proffered reason for terminating him is a pretext for discrimination since it followed a poor investigation. Specifically, plaintiff argues that Gross's "so-called investigation," was "doomed with bias and prejudice from its inception." Plaintiff's contentions, though vague, seem to lie with three aspects of Gross' investigation: first, the fact that Gross reviewed the Messina investigation file before meeting with plaintiff; second, the fact that the only individuals Gross spoke to during her investigation were either friends with, or had recently spoken to, Birch; and third, Gross's "underlying gender-discriminatory motive . . . throughout the "investigation' process."
First, the fact that Gross reviewed the Messina file prior to meeting with plaintiff does not draw into question the validity of Gross's own investigation into Birch's allegations. Defendant's proffered reason for terminating plaintiff was not that he had twice engaged in sexually harassing behavior. Rather, defendant terminated plaintiff because it believed that his continued employment posed too great a risk to the company. In fact, at the time of his termination plaintiff was specifically told that there had been no finding of fault. Thus, rather than tending to show pretext for discriminatory intent, Gross's review of the Messina file only strengthens defendant's proffered reason for terminating plaintiff, since plaintiff had already been accused of engaging in inappropriate conduct once, his "risk" to the company was compounded by Birch's complaints.
Second, even if it is true that the only individuals Gross spoke to during her investigation were either friends with, or had recently spoken to, Birch, the court finds that fact of little consequence. In each of her memoranda summarizing her conversations with Koons, Boss, Booth, Overstreet, and Josway, Gross makes the extent of their relationship and/or interaction with Birch clear. Plaintiff himself appears to have gleaned this knowledge from Gross's memoranda. The fact that this information is included in the memoranda suggests that the potential biases of these individuals was taken into account by Gross. Also, even if it could be said that Koons, Boss, Booth and Josway were all biased by their alleged affinity for Birch, plaintiff fails to explain why Birch's contact with Overstreet prior to Gross's conversation with her should detract from her recollection of plaintiff attempting to arrange to share a hotel room with Birch. Surely plaintiff is not suggesting that Overstreet lied to Gross, since plaintiffs own deposition testimony regarding the Marriott Hotel incident lends credibility to Overstreet's account.
Plaintiff testified that he did suggest sharing a suite with Birch (though he explained that he was under the impression that the suites had two separate sleeping areas divided by a door), that she refused, and that the two ended up staying elsewhere.
Third, the court can find no evidence whatever that Gross conducted her investigation with a gender-discriminatory motive, as plaintiff claims. of the five individuals Gross contacted in the course of her investigation, two were female employees of defendant, one was a female employee of Aon, one was a male employee of Aon, and one was a female employee of the Marriott Hotel in Louisville. Each of these individuals confirmed at least one of Birch's complaints against plaintiff. Further, Gross's memoranda about her conversations with these individuals are summaries of what she learned and do not contain any commentary or argumentative conclusions by Gross. While it may be true that Gross could have dug deeper in her investigation to verify more of the statements made by Birch and others, there is no evidence suggesting that the information she did uncover was tainted in any way by any improper motive she personally held.
Of course, this examination of plaintiffs poor investigation argument is of little consequence in the end. The fact of the matter is that plaintiff's argument falls short for a more obvious reason. It is well established that whether an employer's decision was right does not matter in a Title VII intentional discrimination claim. Mills, 171 F.3d at 458. It is the honesty of the proffered reason, not its total accuracy, that counts. Id. Plaintiff has the burden of showing that defendant's stated reason for terminating him was either a lie or had no basis in fact. Id.
Plaintiff has not offered evidence that could lead a reasonable jury to conclude that defendant's proffered reason was a lie. The court reminds plaintiff that it was Anderson, not Gross, who made the final decision to terminate plaintiff and informed plaintiff of the reason he was being terminated. Hence, plaintiffs arguments regarding the weaknesses of Gross's investigation are irrelevant to whether Anderson was in any way swayed by any allegedly improper investigatory method or discriminatory motive held by Gross.
Further, even if plaintiff were right that Gross should not have reviewed the Messina file, should have investigated Birch's claims further, and was herself biased against plaintiff because of his gender, plaintiff has failed to offer evidence that could lead a reasonable jury to conclude that defendant's proffered reason was void of any basis in fact. The account of Overstreet alone, coupled with plaintiff's own testimony regarding the Marriott Hotel incident, is sufficient factual basis for defendant's conclusion that plaintiff was indeed a "risk" to the company. In addition, the undisputed facts show that plaintiff talked about the lack of affection he received from his wife with Birch, again supporting defendant's conclusion that plaintiff was a "risk." And finally, the accounts of Koons, Boss, Booth, Overstreet, and Josway, even if tainted to some degree by Gross's investigation or by their own bias toward Birch, are too consistent and too striking to be said to be completely void of a basis in fact.
B. Plaintiff's "failure to investigate" argument
Plaintiff also argues that the fact that the allegations he made against Birch were not investigated is evidence of pretext; that is, that defendant investigated Birch's complaints against plaintiff only because of his gender. Given the fact that Birch and plaintiff are not similarly situated, however, the court finds this argument insufficient to form the basis for an inference of pretext. See Denisi v. Dominick's Finer Foods, Inc., 99 F.3d 860, 867 (7th Cir. 1996) (refusing to find pretext based on different treatment of other employees because those employees were not similarly situated to the plaintiff). The court will not "sit as a super personnel department to review [defendant's] business decisions." Ransom v. CSC Consulting Inc., 217 F.3d 467, 471 (7th Cir. 2000). The fact remains that there are many possible explanations for why defendant did not investigate plaintiff's claims about Birch, but none of those reasons make defendant's perceived "risk" in continuing to employ plaintiff any less honest or true.
CONCLUSION
In conclusion, the court finds that plaintiff has failed to establish the first and fourth elements of his prima facie case. Even if plaintiff could establish those elements, the court would nonetheless find that plaintiffs case ends here because he has failed to put forth sufficient evidence to support an inference that defendant's legitimate non-discriminatory reason for terminating plaintiff was a pretext for gender discrimination. Other than plaintiffs self-serving testimony that he believes he was fired because of his gender, plaintiff has offered insufficient evidence to lead a reasonable jury to conclude that defendant's proffered reason was a lie or lacked a basis in fact. The court therefore grants defendant's motion for summary judgment, terminating the instant case.