Opinion
Civil Action No. 3:99-CV-0518-P
February 4, 2000
MEMORANDUM OPINION AND ORDER
Now before the Court are Defendant's Motion for Summary Judgment, filed November 30, 1999, and Defendant's Motion to Strike Affidavit of Melody Sherrod filed on January 13, 2000, After carefully reviewing the complaint, motion, briefing, and applicable law, the Court hereby GRANTS Defendant's Motion for Summary Judgment.
FACTS
Plaintiff Melody Sherrod ("Plaintiff" or "Sherrod"), a female, began working with AIG Healthcare Management Services, Inc., ("AIGHMS" or "Defendant") on March 6, 1989 as a clerk typist with a starting salary of $17,000. Pl's Depo. at 45, Def's App. at 12. Throughout Plaintiff's tenure, she received several promotions, raises, and salary adjustments. While in this position, she began to help Lowell Lowrance with billing coordination. Among having other responsibilities, Mr. Lowrance was the billing coordinator for the Defendant's operations throughout the United States. Sherrod began coming to Mr. Lowrance and learning how to perform data entry for medical billing. Pl's Depo. at 77, Def's App. at 20, Eventually, she began to perform the billing coordination for two of Defendant's regions. After working together in this capacity, Mr. Lowrance was promoted from the position of Quality Assurance Specialist to Customer Service Supervisor. Lowrance Decl., Def's App. at 137, At that time, in August 1995, Sherrod received a promotion to Systems Trainer. Pl's Depo. at 71-73, Def's App. at 18-19. In this role, she identified her primary duties as involving traveling to the Defendant's sites throughout the Central and Southeast regions in order to train people to perform data entry for medical billing. Pl's Depo. at 81-82, Def's App. at 21.
On March 5, 1990, Sherrod received a 7% pay increase that resulted in a salary of $18,190.12. Pl's Depo. at 51, Def's App. at 13. In 1991, she received a 6% pay increase that resulted in a salary of $19,282.12, Pl's Depo. at 54, Def's App. at 14. In 1992, her salary increased by 6% to $20,438.85. Pl's Depo. at. 60, Def's App. at 15. In 1993, her salary increased by 3.5% to $21,154.12. Pl's Depo. at 62, Def's App. at 16. In 1994, her salary increased by 4% to $22,000.16. Pl's Depo. at 63, Def's App. at 16. In 1995, her salary increased by 4% to $22,880.26. Pl's Depo. at 70, Def's App. at 18. In 1995, Plaintiff received a promotion to Systems Trainer along with a 10% pay increase that resulted in a salary of $25,168.26. Pl's Depo. at 72, Def's App. at 18. In 1996, her salary increased by 5.4% to $26,523.00. Pl's Depo. at 100, Def's App. at 25; Def's App. at 171.
On October 10, 1991, Plaintiff's supervisor explained to Sherrod that she could not engage in personal activities at work and that office equipment could not be used for non-work related activities. Pl's Depo. at 58-59, Def's App. at 15, 74. On or about May 2, 1997, Wendy Sledz, Regional Director of AIGHMS made a report to Internal Affairs that she had seen a picture of a naked man on Plaintiff's computer screen. Garcia Decl. ¶ 3, Def's App. at 96. Ms. Sledz also reported receiving a complaint that Sherrod had male visitors at the office and was, perhaps, running a dating service from the office with coworkers Wilma Robinson and Sheila Boyd. Id.
In response to the complaints, two investigators from Internal Affairs searched the hard drive to Sherrod's computer and investigated these claims. Id. The Defendant did not discover any evidence that Sherrod was operating a dating service from the office. Darcy Rosenfeld Depo. at 17, Pl's Resp. However, the investigation recovered twenty-three pictures from Sherrod's hard drive, including two pictures of erect, naked men and two revealing pictures of the Plaintiff. Def's App. at 75, 91, 94, 95. The other pictures included pictures of Sherrod, pictures of unidentified men, and a picture of a female co-worker. Def's App. at 76-90, 92-93.
The Plaintiff does not deny that these pictures were on her computer. Pl's Depo. at 110, Def's App. at 28. When asked in her deposition to identify the two pictures of naked men, Sherrod admitted that they were on her work computer and stated that she downloaded the images from emails that were sent to her at work, possibly during work hours. Pl's Depo. at 157-59, 165-67, Def's App. at 40, 42. She also admitted downloading onto her work computer pictures of herself from email that she received at work. Pl's Depo. at 127-39, 164-65, Def's App. at 32-35, 41-42, 75-80, 94. Two of these pictures are rather revealing, and she admitted that this activity may have also been conducted during work hours. Id. Similarly, Plaintiff admitted that she downloaded several other pictures of men onto her work computer, possibly during work hours. Pl's Depo. at 145-57, 163-64, Def's App. at 37-41, 83, 85-90, 92-93. Those pictures were of men with whom she had "chatted" on-line, possibly during work hours. Id. After completing its investigation, Internal Affairs recommended Sherrod's termination for downloading pornography from the internet. Garcia Decl. ¶ 6, Def's App. at 97.
In Plaintiff's Affidavit attached to her Response, she denies ever downloading or receiving any of these photos during work hours. She also states that she never chatted on-line during work hours. She also states: "It was not possible for me to tell what was in an e-mail without opening it." These statements, along with some others, directly contradict her previously given sworn deposition testimony. It is a well settled principle of law that this Court will not allow a party to create an issue of fact to defeat summary judgment using an affidavit that impeaches, without explanation, sworn testimony, S.W.S. Erectors. Inc. v. Infax. Inc., 72 F.3d 489, 495 (5th Cir. 1996). The Plaintiff has not explained any differences between the affidavit and the deposition testimony. She has not alleged mistake or any other explanation for the differences in the statements. The affidavit testimony will not be considered to the extent that it contradicts the testimony given at the deposition. It will be considered, however, to the extent that it merely supplements, explains, or gives additional facts to her deposition testimony.Id. at 496. Accordingly, the Court GRANTS Defendant's Motion to Strike Affidavit of Melody Sherrod only to the extent that the affidavit testimony contradicts her deposition testimony.
Sherrod now sues the Defendant under Title VII and the Age Discrimination in Employment Act ("ADEA") claiming that they discriminated against her on the basis of her sex and age. Specifically, she states that younger men participated in the same activity and were not fired. Pl's Compl. at 10. Plaintiff states that Mr. Lowrance sometimes sent nude pictures to her yet he was not investigated or reprimanded by the Defendant. Pl's Resp. at 1-2. She also sues under the Equal Pay Act claiming that she made less money than Mr. Lowrance, her male counterpart, for performing substantially the same job duties. AIGHMS moves for summary judgment arguing that it had a legitimate business reason for discharging Sherrod and that she has produced no evidence of either sex or age discrimination. Moreover, AIGHMS moves for summary judgment on the Equal Pay Act claims arguing that Mr. Lowrance performed different tasks than the Plaintiff with greater responsibilities and had more seniority. Accordingly, they argue that factors other than the Plaintiff's sex explain any difference in pay.
DISCUSSION
A. Summary Judgment Standard
Summary Judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold. Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group. Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the nonmoving party directs. Id.
B. Equal Pay Act
Under the Equal Pay Act (the "Act"), an employer is prohibited from discriminating "between employees on the basis of sex . . . for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions." 29 U.S.C.A. § 206(d)(1) (1978). To establish a prima facie case under the Equal Pay Act, a plaintiff must demonstrate that (1) her employer is subject to the Act; (2) she performed work in a position requiring equal skill, effort and responsibility under similar working conditions; and (3) she was paid less than members of the opposite sex providing the basis for comparison. Jones v. Flagship Int'l, 793 F.2d 714, 722-23 (5th Cir. 1986); Williams v. Tex. Dep't of Trans., Civ. A. No. 3:95-CV-2230-BC, 1997 WL 53142, at *5 (N.D. Tex. 1997). Plaintiff need not show that her job duties were identical to those of higher paid male employees, only that the "skill, effort and responsibility" required in the performance of the compared jobs are "substantially equal."Peters v. City of Shreveport, 818 F.2d 1148, 1153 (5th Cir. 1987); Williams, 1997 WL 53142, at *6. When a plaintiff succeeds in establishing her prima facie case, the burdens of production and persuasion shift to the employer to demonstrate one of the four affirmative defenses specified under the Equal Pay Act. Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983). In other words, the burden shifts to the employer once a plaintiff shows she was paid less than a male who was performing substantially the same job. Id. The Act provides exceptions, sometimes referred to as affirmative defenses, for disparate wage payments made pursuant to: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) a differential based upon any factor other than sex. Peters, 818 F.2d at 1153 (citing 29 U.S.C. § 206 (d)(1)).
Unlike a claim arising under Title VII, a plaintiff in an Equal Pay Act case need not demonstrate discriminatory intent.Id.
Unlike a claim arising under Title VII, the plaintiff does not retain the ultimate burden of persuasion in an Equal Pay Act case. In an Equal Pay Act case, the employer, not the employee, must prove the actual wage disparity is not sex linked. Plemer, 713 F.2d at 1136.
First, the Court must determine whether Plaintiff establishes her prima facie case. Defendant does not dispute that it is an "employer" as defined by the Act. Defendant does, however, contend that Plaintiff cannot meet the second element of her prima facie case, which requires her to demonstrate that she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions as a male who received a higher salary. Def's Mot. at 7-8. The Defendant agues that no other employee performed the same duties or held the same position as the Plaintiff. Def's Br., at 11-12.
See 29 U.S.C.A. § 203(d) which defines "employer as any person acting directly or indirectly in the interest of an employer in relation to an employee."
For purposes of her Equal Pay Act claim, Sherrod compares herself to Mr. Lowrance. Pl's Depo. at 80, Def. App. at 20. Although the law does not require the Plaintiff to compare herself with an identical position, the court finds that Mr. Lowrance and the Plaintiff did not perform job duties that were substantially equal in the skill, effort and responsibility required in the performance of their compared jobs. Moreover, the Plaintiff has not demonstrated a disparity in salaries that would create a violation of the Act.
Mr. Lowrance and the Plaintiff did not perform substantially similar job duties as Quality Assurance Specialist and Systems Trainer. As Quality Assurance Specialist, Mr. Lowrance's job duties included inputting the billing reports for the entire Western region. Lowrance Decl. ¶ 5, Def's App. at 138. He spent approximately half of his time writing and implementing test plans to ensure the functioning and integrity of new computer programs. Id. He also monitored quality assurance reviews of the billing reports and trained 13 offices in the Western Region on how to use the billing system. Id.
The only evidence that Sherrod provided to support her claim that the jobs were substantially similar was a statement in her affidavit attached to the Plaintiff's Response: "When I was placed in his position upon his departure, with equal or greater responsibility and duties, I was making $22,433." Sherrod Aff. at 6, Pl's Resp. However, her deposition testimony provides a more detailed description of her job duties. As Systems Trainer, Sherrod identified her primary duty and responsibility as training the major service centers on how to use the billing system. Pl's Depo. at 78, 81, Def's App. at 20, 21. Whenever she was not training or when others fell behind in their work, she would also perform some quality assurance testing on the systems program and perform some billing input. Pl's Depo. at 88-89, Def's App. at 22-23. She also ran yearly, weekly and monthly reports of billing information. Pl's Depo. at 85, Def's App. at 22. Mr. Lowrance was also responsible for running these types of reports, however, Sherrod was not responsible for the billing input for any region, nor did she write test plans. Id.
Based upon the job distinctions between Sherrod and Mr. Lowrance, the Court finds that the jobs cannot properly be compared as substantially similar under the Act. See, Tarango v. Johnson Johnson Medical Inc., 949 F. Supp. 1285 (W.D. Tex. 1996) (finding no prima facie case under the Act where the male employee had additional responsibilities and had received better evaluations than the female employee). Moreover, Sherrod and Mr. Lowrance performed their duties under different circumstances. The two never held the same positions at the same time. As Quality Assurance Specialist, Mr. Lowrance reported to two supervisors from two separate departments. Pl's Depo. at 88, Def's App. at 22; Lowrance Decl. at 2, Def's App. at 138. This also created a situation wherein Mr. Lowrance's salary was divided between two departments. Id. Sherrod reported to only one supervisor in one department. Pl's Depo. at 88, Def's App. at 23.
Even if the Plaintiff had established her prima facie case, Defendant argues that it is entitled to summary judgment based on application of the statute's affirmative defenses. When the Defendant promoted Mr. Lowrance from Quality Assurance Specialist, his salary was $29,766. Sherrod alleges that at the time she was promoted to Systems Trainer, her salary was $22,433, but once she became Systems Trainer, she received a raise to $25,168.26, effective July 17, 1995. Sherrod Aff. at 6, Pl's Resp.; Pl's Depo. at 72, Def's App. at 18; Rosenfeld Decl. at 2, Def's App. at 140.
The Defendant argues that the Court should compare Sherrod's salary to Mr. Lowrance's $25,232 salary at the time that he first began as Quality Assurance Assistant, which would create a de minimis difference of about $65. For the purposes of this Motion, the Court will use Mr. Lowrance's most recent salary for determination of a pay difference, but consider the Defendant's argument as an explanation for the differences between the salaries. Mr. Lowrance's post-promotion raise to $38,000 is irrelevant to these matters.
The Defendant claims that merit provided a reason for any difference in pay between Mr. Lowrance and the Plaintiff. Mr. Lowrance received the highest rating, exceeds all expectations, on all of his reviews while the Plaintiff received lower reviews of exceeds some expectations. Def's Br. at 14, Def's App. at 137, 140-41. Moreover, Mr. Lowrance had a longer tenure with the company. Def's Br. at 14, Def's App. at 141. Not only had he worked for the Defendant for two years longer than the Plaintiff, but by the time of his promotion, he had been the Quality Assurance Assistant for three years. The Plaintiff has not produced any evidence to rebut these facts. Nor has she produced any evidence that these considerations served as a cover for the Defendant's actual motives.
The Defendant included performance evaluations for both Sherrod and Mr. Lowrance as exhibits to the Declaration of Darcy Rosenfeld, Defendant's Human Resources Manager, in the Appendix to the Motion for Summary Judgment. Def's App. at 139.
Once again, the Court notes that their starting salaries at these two positions differed by only $65.
The Court finds no genuine issue of material fact as to any of the above discussion. Plaintiff has not sustained her summary judgment burden of demonstrating a prima facie case of discrimination under the Equal Pay Act. Even if she had, the Plaintiff failed to produce any evidence that factors relating to her sex created a salary difference or to respond to the Defendant's affirmative defense. The Court finds from the undisputed evidence that any difference in the salary of Sherrod and Mr. Lowrance was based on seniority, merit, ability and responsibility rather than gender. For the reasons stated herein, Defendant's Motion for Summary Judgment as to the Equal Pay Act claim is hereby GRANTED.
C. Title VII and the ADEA
Title VII of the Civil Rights Act of 1964 prohibits various forms of employment discrimination, including discrimination on the basis of gender. 42 U.S.C.A. § 2000e-2(a)(1) (1994);Urbana v. Continental Airlines, 138 F.3d 204, 205-06 (5th Cir. 1998) The ADEA makes it unlawful for an employer to discriminate against an individual on the basis of age. 29 U.S.C.A. § 623(a)(1) (1999). The Supreme Court laid out the basic framework for analyzing an employment discrimination claim in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). While this case analyzed Title VII employment discrimination, claims brought under the ADEA are subject to the same standards. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (1996); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993). Therefore, the Court will address Sherrod's sex and age discrimination claims together.
42 U.S.C.A. § 2000e-2(a) reads as follows: "It shall be an unlawful employment practice for an employer — (1) to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's sex." 42 U.S.C.A. § 2000e-2 (a)(1)(1994).
29 U.S.C.A. § 623(a) reads as follows: "It shall be unlawful for an employer — (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C.A. § 623(a)(1) (1999).
The ultimate issue in a case of discrimination under either Title VII or the ADEA is whether the Plaintiff's gender or age was a factor in an adverse employment decision against her.Rhodes v. Guiberson Oil Tools, 39 F.3d 537, 542 (5th Cir. 1994). To defeat a motion for summary judgment, a plaintiff must first establish a prima facie case of discrimination. Fakuri v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997); Plemer, 713 F.2d at 1136. To do so, the plaintiff may prove her claim through either direct or circumstantial evidence. Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 587 (5th Cir. 1998). Because Sherrod presented no direct evidence of gender or age discrimination, her claims are subject to the Supreme Court'sMcDonnell Douglas test.
Under the McDonnell Douglas burden shifting test, the plaintiff first bears the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas, 411 U.S. at 802. The prima facie case of discrimination requires the plaintiff to prove (I) she was a member of a protected class; (2) she was qualified for the position she was denied; (3) she suffered an adverse employment action; and (4) she was replaced by or treated differently than someone outside the protected class. McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the defendant "to articulate some legitimate nondiscriminatory reason for the employee's rejection." Id. If the defendant meets this burden, then the plaintiff must prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons but were instead pretext for discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The ultimate burden of persuasion as to the defendant's intentional discrimination remains at all times with the plaintiff Id.
1. Title VII
Sherrod bases her prima facie case of sex discrimination on the allegedly disparate manner in which the Defendant treated men who behaved similarly to the Plaintiff. Specifically, she states that Mr. Lowrance instigated and sent the inappropriate email to her and downloaded this type of information as well, yet the Defendant did not investigate or discipline him. Pl's Resp. at 4-5. The Court assumes, arguendo, that the Plaintiff meets her burden in establishing a prima facie case.
The Court notes that Sherrod's claims of disparate treatment are brought into doubt by her deposition testimony and the evidence submitted by the Defendant. Sherrod stated that she did not inform the Defendant of Mr. Lowrance's alleged involvement with the email until after her discharge. Pl's Depo. at 112, Def's App. at 28. Moreover, the Defendant never found any pornographic materials on Mr. Lowrance's work computer. Garcia Decl. ¶ 10, Def's App. at 98, Packer Decl. ¶ 4, Def's App. at 136. Sherrod failed to provide any evidence rebutting the Defendant's evidence that the only other person found with pornographic materials on their work computer was male and immediately terminated. Garcia Decl. ¶ 8, Def's App. at 98. Regardless of these doubts, the Court will assume that the Plaintiff demonstrated a prima facie case of discrimination and will proceed to analyze the Defendant's proffered legitimate, nondiscriminatory reason for terminating the Plaintiff's employment.
In its motion for summary judgment, the Defendant offered evidence that it based its decision to terminate the Plaintiff on its investigation that recovered pornographic pictures on her work computer. AIGHMS maintained that Internal Affairs began an investigation of the Plaintiff after receiving a report from a female co-worker that the Plaintiff had a picture of a naked man on her computer screen. Garcia Decl. ¶ 3, Def's App. at 96. This investigation recovered from Sherrod' s work computer 23 pictures, including a picture of a naked man holding his erect penis and another of a naked man with his erect penis exposed. Garcia Decl. ¶ 4, Def's App. at 97, 117, 121. Internal Affairs also found two pictures of the Plaintiff that reveal an ample portion of her cleavage. Garcia Decl. ¶ 4, Def's App. at 97, 101, 120. In the course of its work, the Defendant found evidence that it claims demonstrates that the Plaintiff downloaded this material during work hours. Garcia Decl. ¶ 4, Def's App. at 97, 123-30. Based upon its policy that prohibits its employees from keeping or downloading this type of material on its work computers, Internal Affairs recommended Sherrod's termination. Garcia Decl. ¶ 5, Def's App. at 97, 132-34, These conclusions and recommendation was relied upon by William J. Packer who then decided to terminate Sherrod, Packer Decl. ¶ 3, Def's App. at 135.
AIGHMS has satisfied its burden of production by alleging facts which, taken as true, would permit this Court to find there was a legitimate nondiscriminatory reason for Sherrod's discharge. Therefore, in order to avoid summary judgment, Sherrod must now demonstrate that the Defendant's reasons for her termination are pretext for discrimination. To establish pretext, the Plaintiff cannot rely upon her subjective belief that AIGHMS discriminated against her. See Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997); Ray v. Tandem, 63 F.3d 429, 434 (5th Cir. 1995). She must provide substantial evidence from which a reasonable inference can be drawn that the Defendant's proffered reasons are false; a mere shadow of a doubt is insufficient. EEOC v. Louisiana Office of Community Serv., 47 F.3d 1438, 1444 (5th Cir. 1995).
As evidence of pretext, the Plaintiff points to alleged inconsistencies in the Defendant's investigation and the Internal Affairs report. The Plaintiff alleges that the Defendant's investigation was "inaccurate, exaggerated, and computer logs were intentionally misconstrued." Pl's Resp. at 4. Specifically, the Plaintiff alleges that many of the files identified on the computer logs were so small that they could not contain anything of consequence. Pl's Resp. at 6. She also argues that the times clearly indicate that much of the material was not accessed during normal working hours. Id. Furthermore, the Defendant did not give Sherrod an exit interview upon her termination as is ordinary procedure. Id. According to the Plaintiff, these contradictions and exaggerations demonstrate in and of themselves that the Defendant's proffered reasons for firing her are pretext for its true, discriminatory motives.
The Court disagrees. The investigator's recommendation states: "It should be noted that a majority of the pictures were downloaded during business hours according to the time stamp of the computer." Def's App. at 134. Though there may be some question as to whether Sherrod downloaded the images from the internet or merely opened them as an attachment to her email, and as to the time at which she received the materials, these distinctions are irrelevant. The Plaintiff admitted that the pictures of naked men were on her computer and that she did not delete them. Regardless of how or when they got there, she kept them on her computer and viewed them, at least once, during working hours. The investigator's report goes on to state that "AIG should be thankful the unit manager and not a client saw the naked picture. Naked pictures on a computer screen can lead to unwelcome behavior that creates an intimidating and hostile work environment for employees and a potential liability for non-employees." Def's App. at 134.
Title VII does not guarantee plaintiffs that they may only be terminated after a completely thorough, accurate, and fair investigation into the circumstances around a termination. Rather, Title VII prohibits the employer from considering certain criteria, in this case, sex and age, when making that employment decision. The Plaintiff may have produced evidence that the investigation was not as thorough as it could have been and that she was not given an opportunity to explain, but she failed to produce any evidence that the investigation and recommendation were pretext for sex discrimination.
Sherrod urges this Court to find pretext because Mr. Lowrance, a male, downloaded material onto the same computer as Sherrod and was neither investigated nor disciplined. Pl's Resp. at 6. Moreover, she alleges that he sent much of the complained of material to her via email. Id. The Defendant was not aware of Sherrod's allegations at the time that it made the employment decision. Sherrod never complained to anyone about receiving inappropriate email from Mr. Lowrance or any of her co-workers. Sherrod does not contest that AIGHMS previously fired a male employee for downloading pornographic material from the internet. Nor did she provide any evidence that the Defendant ever recovered any pictures of nudes on his computer. In short, the Plaintiff has failed to produce substantial evidence from which this Court can infer that the Defendant's proffered reasons for her termination were actually pretext for sex discrimination. For these reasons, the Court hereby GRANTS the Defendant's Motion for Summary Judgment as to the Plaintiff's Title VII claims.
2. Age Discrimination
The Plaintiff failed to make a prima facie case of age discrimination. Not in her complaint, her Response to the Defendant's Motion for Summary Judgment, or her affidavit attached to the Response does the Plaintiff even inform the Court of her age. In fact, the Response ignores the age discrimination claim completely, merely stating that "Plaintiff is clearly in a protected class in that she is female and clearly suffered an adverse employment decision." Pl's Resp. at 3.
The Defendant does identify Sherrod's age as over forty at the time of her discharge. Rosenfeld Decl.6 ¶ 10, Def's App. at 143.
Sherrod has not produced any evidence that she was treated differently because of her age. The Plaintiff did not direct this Court to any evidence of age related animus by the Defendant or any of her co-workers. In her deposition, the Plaintiff stated that the age related comments made about her at work were made by her "buddies" who would comment on her gray hair. Pl's Depo. at 212, Def's App. at 53. The only specific age related comment that she identified was allegedly made by Wendy Sledz, who stated, "did you use a tire pump to blow up your 1910 hair — no, your 1960's hairdo?" Pl's Depo. at 213, Def's App. at 54. The Plaintiff did not identify any age related comments made by the man who made the ultimate decision to fire her.
See Pl's Depo. 211-14, Def's App. at 53-54 (identifying age related remarks made to the Plaintiff); Pl's Resp. at 3 (identifying Bill Parker as the male who decided to punish Sherrod).
The Plaintiff has not produced any evidence that demonstrates her discharge was related to her age. In fact, the Defendant pointed out that they investigated another woman, older than the Plaintiff. The Defendant investigated Wilma Robinson along with Sherrod in connection with the alleged dating service that Sledz had heard complaints about from Sherrod's co-workers. Rosenfeld Decl. ¶ 10, Def's App. at 143. However, when the investigation produced no evidence of any wrongdoing by Ms. Robinson, no one recommended her discharge, even though she was older than Sherrod. Garcia Decl. ¶ 6, Def's App. at 98. Conclusory assertions of age discrimination fail to meet the Plaintiff's burden of establishing a prima facie case that proscribed discrimination motivated the Defendant's actions against her, Ray v. Tandem Computers. Inc., 63 F.3d 429, 435 (5th Cir. 1995). Moreover, even if this Court assumes that the Plaintiff did meet her burden in establishing a prima facie case of age discrimination, the Plaintiff has not produced any evidence that the Defendant's proffered legitimate business reason for terminating the Plaintiff was pretext for age discrimination. For these reasons, the Court hereby GRANTS the Defendant's Motion for Summary Judgment as to Plaintiff's claims under the ADEA.
See supra for discussion on the Defendant's legitimate business reason for terminating the Plaintiff.
CONCLUSION
For the reasons stated herein, Defendant's Motion to Strike Affidavit of Melody Sherrod is GRANTED IN PART, Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's Equal Pay Act claim, GRANTED as to Plaintiff's Title VII Claim, and GRANTED as to Plaintiff's ADEA claim.
So ORDERED, this 4th day of February 2000.