Opinion
Case No. 00-CV-73452
May 24, 2001
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR DISMISSAL/SUMMARY JUDGMENT
Defendants Family Independence Agency ("FIA") and Allen Vermeulen move for dismissal/summary judgment of plaintiff Vivian Akers claims of race, gender, age and culture discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.. The facts and legal arguments presented in the parties' briefs are sufficient to adjudicate the motion. Oral argument would not significantly aid the decisional process. Pursuant to E.D. Mich. Local R. 7.1(e)(2), it is ORDERED that the motion be resolved without oral argument. For the reasons set forth below, defendants' motion will be GRANTED.
I. Background
Plaintiff, appearing pro per filed a complaint on June 14, 2000 alleging that, beginning on February 3, 1999, she was treated differently than her co-workers at the FIA, and was subjected to double-standards due to her African-American race, her gender, and her age of 55 years. Plaintiff later clarifies by alleging that "the first instance with Mr. Vermeulen began in January, 1996." Plaintiff alleges that discrimination was "blatant", that she was "verbally abused, singled-out, libeled against, verbally assaulted [and] slandered", and that she worked in "a very hostile environment." Plaintiff further alleges that she was wrongfully discharged. Plaintiff continues that, at the end of a "4th step hearing", on April 5, 2000, certain individuals, including defendant Vermeulen, "drummed up false charges against me in retaliation, illegally to have me terminated." Defendants filed the instant motion to dismiss/summary judgment on March 13, 2001. Plaintiff filed a response on April 9, 2001. The motion is now ripe for review.
II. Standards of Review
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a claim on an issue of law. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering a Rule 12(b)(6) motion, a court must "accept all of plaintiff's factual allegations as true and determine whether any set of facts consistent with the allegations would entitle the plaintiff to relief." G.M. Eng'r and Assoc., Inc. v. West Bloomfield Tp., 922 F.2d 328, 330 (6th Cir. 1990).
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith 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 judgment as a matter of law." See FDIC v. Alexander, 78 F.3d 1103, 1106 (6th Cir. 1996). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Kutrom Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir. 1992). The standard for determining whether summary judgment is appropriate is "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Winningham v. North Am. Resources Corp., 42 F.3d 981, 984 (6th Cir. 1994) (citingBooker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989)). The evidence and all inferences drawn therefrom must be construed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);Enertech Elec., Inc. v. Mahoning County Comm'r, 85 F.3d 257, 259 (6th Cir. 1996); Wilson v. Stroh Co., Inc., 952 F.2d 942, 945 (6th Cir. 1992). If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968);see also Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995). The nonmoving party cannot rest on its pleadings to avoid summary judgment, but must support its claims with probative evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Kraft v. United States, 991 F.2d 292, 296 (6th Cir.), cert. denied, 510 U.S. 976 (1993).
III. Analysis A. Individual Liability of Vermeulen
Defendant Vermeulen argues he is entitled to dismissal because individual supervisors cannot be held liable under Title VII. The court agrees. In Wathen v. General Electric Co., 115 F.3d 400, 405 (6th Cir. 1997), the court expressly held that "an individual employee/supervisor, who does not otherwise qualify as an `employer' [under 42 U.S.C. § 2000e(b) ], may not be held personally liable under Title VII." After examining the statutory scheme and remedial provisions of Title VII, the court rejected the argument that use of the term "agent" within the statutory definition of "employer" manifested Congress' intent to impose personal liability against supervisors in their individual capacities. Id. at 405-406. Rather, the term "agent" was included to incorporate respondeat superior liability against the actual employer. See Comiskey v. Automotive Industry Action Group, 40 F. Supp.2d 877, 890 (E.D. Mich. 1999) (citing Wathen, 115 F.3d at 406). See also Hiler v. Brown, 177 F.3d 542, 546 (6th Cir. 1999) (reasoning that "numerous courts, including this one, have held that supervisors, sued in their individual capacities, are not included within the statutory definition of `employer' under Title VII and its sister civil rights statutes, and accordingly cannot be held personally liable for discrimination."). This same reasoning applies to plaintiff's age discrimination claims under the ADEA. Wathen, 115 F.3d at 404, 404 n. 6; Hiler, 177 F.3d at 546 (citing Smith v. Lomax, 45 F.3d 402, 403 (11th Cir. 1995) (recognizing that supervisors, as employees, cannot be held individually liable under the ADEA or Title VII)). Although defendant FIA may be held liable as plaintiff's employer for the acts of plaintiff's supervisor Vermeulen, Vermeulen cannot be held individually liable under Title VII or the ADEA as a matter of law. Defendant Vermeulen is entitled to dismissal of plaintiff's Title VII and ADEA claims. Wathen, 115 F.3d at 405; Conley, 355 U.S. at 45-46.
An "employer" is defined under Title VII to mean "a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person." 42 U.S.C. § 2000e(b).
An "employer" is defined under the ADEA to mean "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year[.]. . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States." 29 U.S.C. § 630(b).
B. Timeliness/Scope of Plaintiff's Claims
Defendants argue that plaintiff's discrimination claims based on conduct that allegedly occurred prior to June 6, 1998 are time barred because they occurred more than 300 days before plaintiff filed a joint charge with the Michigan Department of Civil Rights and EEOC on April 2, 1999. See 42 U.S.C. § 2000e-5(e)(1) ; 29 U.S.C. § 626(d)(2), 633(b). Defendants also argue plaintiff's discrimination claims premised on being issued a conditional service rating on May 5, 1999, demoted on September 19, 1999, and terminated on April 5, 2000 are outside the scope of her April 2, 1999 charge of discrimination and therefore beyond the court's review for failure to exhaust administrative remedies. Defendants further assert that plaintiff's claims of race and cultural discrimination are barred because plaintiff did not allege race or cultural discrimination in her administrative charge.
"Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency; seniority system
(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency." 42 U.S.C. § 2000e-5(e)(1).
"(d) Filing of charge with Commission; timeliness; conciliation, conference, and persuasion
No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed —
(1) within 180 days after the alleged unlawful practice occurred; or
(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. . . ." 29 U.S.C. § 626(d).
"(b) Limitation of Federal action upon commencement of State proceedings
In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, That such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State law. If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority." 29 U.S.C. § 633(b).
"In order for federal courts to have subject matter jurisdiction of Title VII claims, the claimant must first unsuccessfully pursue administrative relief." Ang v. The Proctor Gamble Co., 932 F.2d 540, 544 (6th Cir. 1991) (citing Love v. Pullman Co., 404 U.S. 522 (1972)).See also Lyles v. Clinton-Ingham-Eaton Community Mental Health Board, 35 F. Supp.2d 548 (W.D. Mich. 1998) (applying Title VII administrative exhaustion requirement to ADEA claims). District courts enjoy jurisdiction over claims explicitly filed in the EEOC charge and claims that may be reasonably expected to grow out of the charge. See Abeita v. Transamerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998) (citingAng, 932 F.2d at 544-45).
In her April 2, 1999 charge of discrimination filed with the Michigan Department of Civil Rights and the EEOC, plaintiff alleged:
I am a 54 year old woman and I believe I have been subjected to unfair treatment because of my age and sex.
I began working for the respondent on January 25, 1995 as a word processor V. I was transferred to the human resources unit of personnel on January 29, 1996. On or about November 30, 1998 I received a promotion which was initialized by the former manager, a woman, of employee relations unit who subsequently left the department. The acting manager of the human resources unit, a man, has continually harassed me, and subjected me to unfair working conditions. On April 2, 1999, the acting manager told me to get out of his office. He stated that I was incompetent, was not a team player, and stayed away from my desk. I attempted to get a co-worker to listen in on this session as a witness, but the manager told the co-worker, a woman, to get out also. Younger employees, especially men are not treated in this manner.
Defendants' Exhibit 4 (emphasis added). In boxes used in the form to designate the "CAUSE OF DISCRIMINATION", plaintiff checked the "SEX" and "AGE" boxes, but did not check the boxes "RACE", "COLOR", "RELIGION", "NATIONAL ORIGIN", "RETALIATION" or "OTHER (Specify)". Id. Plaintiff stated that the most recent discrimination took place on April 2, 1999, the date she filed the charge. Id.
EEOC charges filed by an individual without the assistance of counsel are to be liberally construed in recognition "that most Title VII claimants are unschooled in the technicalities of the law." Ang, 932 F.2d at 546. Further, otherwise time-barred unlawful discriminatory acts may be actionable if the plaintiff can establish a continuous pattern of discrimination throughout her term of employment that continued into the EEOC charge-filing period. See Held v. Gulf Oil Co., 684 F.2d 427, 430 (6th Cir. 1982) ("[s]ince [the evidence] supports a finding that discriminatory acts continued throughout her period of employment, the plaintiff's action is not time barred"). See also Hull v. Cuyahoga Valley Joint Vocational School District Board of Education, 926 F.2d 505, 510-11 (6th Cir. 1991) (stating "there are important policy reasons not to require a discrimination suit be filed at the first instance of discrimination or not at all.").
Plaintiff's April 2, 1999 administrative charge contains allegations of discriminatory conduct that occurred on the very day she filed the charge, as well allegations of a pattern of continuing harassment by her supervisor. It could reasonably be expected that alleged acts of discrimination would continue to "grow out of" the April 2, 1999 allegations of continual harassment, including later claims of unlawfully motivated discipline, demotion and ultimate discharge. Abeita, 159 F.3d at 254. Further, in that plaintiff alleged actionable conduct occurring within the 300 day time frame, plaintiff is not time-barred from relying on alleged discriminatory conduct that occurred beyond the 300 day period, or before June 6, 1998. Held, 684 F.2d at 430; Hull, 926 F.2d at 510-11. Defendants arguments regarding the timing of plaintiff's charges and instant claims are not well taken.
More problematic, however, is plaintiff's failure to allege race or cultural discrimination in the April 2, 1999 charge. It is unclear from the record whether plaintiff received legal assistance in drafting her April 2, 1999 administrative charge of discrimination. However, even applying the most liberal standard of construction to plaintiff's April 2, 1999 charge, it would be "contrary to both logic and law" to find that plaintiff put the Michigan Department of Civil Rights and/or the EEOC on notice that she was pursuing race and cultural discrimination claims in addition to sex and age discrimination claims. Ang, 932 F.2d at 546 (quoting Castro v. United States, 775 F.2d 399, 403 n. 2 (1st Cir. 1985)). The claim form completed by plaintiff did not pose technical legal questions about the type of discrimination she sought to allege, but simply asked "CAUSE OF DISCRIMINATION BASED ON (Check appropriate box(es)) RACE COLOR SEX RELIGION NATIONAL ORIGIN AGE RETALIATION OTHER (Specify)". Defendant's Exhibit 4. Plaintiff, or her representative, placed "X"'s squarely within the "SEX" and "AGE" boxes.Id. In her narrative, plaintiff clearly described "unfair treatment because of my age and sex." Id. The scope of plaintiff's administrative charge did not automatically expand because she also happens to be a member of another minority group — the "RACE" group of African-Americans. See Ang, 932 F.2d at 546. Here, there is no legitimate basis to find ambiguity among the categories of "age", "sex", "race" and "culture" considering the Sixth Circuit has held that no ambiguity exists among the terms "national origin", "race", "color" and "religion". Id, at 546 (citing Shah v. Mt. Zion Hosp. Medical Center, 642 F.2d 268, 271-72 (9th Cir. 1981) (holding that an East Indian male charging "national origin" discrimination in his administrative complaint could not include claims of "race", "color" or "religious" discrimination in his Title VII complaint even though he was a member of all four minority groups)). In that an investigation into possible race and cultural discrimination could not reasonably be expected to grow out of plaintiff's April 2, 1999 administrative charge alleging only sex and age discrimination, the court lacks subject matter jurisdiction over plaintiff's recent claims of race or cultural discrimination. Abeita, 159 F.3d at 254; Ang, 932 F.2d at 544.
Plaintiff states in her April 9, 2001 response that she had an "on-again, off-again attorney" that she paid $2,500.00, who stated "all he could do was get my job back." Plaintiff further states that "unless I came up with $5,000 he [said] he could not help me anymore." Plaintiff continues that "He told me he worked hard for me, and that I did not have to go to the first hearing he attended after my termination." Yet, it still remains unclear whether this attorney drafted the April 2, 1999 charge.
Plaintiff repeatedly equates "race" and "cultural" discrimination". To the extent "cultural" discrimination represents "race" discrimination, the claim was not brought before the Michigan Department of Civil Rights or the EEOC. To the extent plaintiff argues "cultural" includes her Southern heritage, this claim was also not placed before the Michigan Department of Civil Rights or the EEOC when plaintiff charged "age" and "sex" discrimination.
The court has subject matter jurisdiction over plaintiff's age and sex discrimination claims. Defendant FIA is entitled to dismissal of plaintiff's race and cultural discrimination claims due to lack of subject matter jurisdiction resulting from plaintiff's failure to exhaust administrative remedies. Abeita, 159 F.3d at 254; Ang, 932 F.2d at 544;Conley, 355 U.S. at 45-46.
C. Gender and Age Based Disparate Treatment
Title VII prohibits an employer from discriminating against an employee on the basis of gender. 42 U.S.C. § 2000e-2(a). The ADEA prohibits an employer from discriminating against an employee on the basis of age. 29 U.S.C. § 623(a) . A plaintiff alleging disparate treatment discrimination must prove that she has been the victim of intentional discrimination. Shah v. General Electric Co., 816 F.2d 264, 267 (6th Cir. 1987) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Rowe v. Cleveland Pneumatic, 690 F.2d 88, 92 (6th Cir. 1982)). Absent direct evidence, intentional discrimination may be proven by legitimate inferences drawn from all of the evidence presented. Id. at 267 (citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977)).
"(a) Employer practices
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
"(a) Employer practices
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;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter."
Under the McDonnell-Douglas/Burdine burden-shifting analysis, the plaintiff must first prove a prima facie case of intentional discrimination Id. at 267 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973)). See also Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (holding thatMcDonnell-Douglas/Burdine formula applies to ADEA claims as well as Title VII claims)). To establish her prima facie case, the plaintiff must allege and be able to prove: (1) membership in the protected class; (2) that she suffered an adverse employment action; (3) that she was qualified for the position, and; (4) that she was treated differently from similarly situated members of the unprotected class. See Mitchell, 964 F.2d at 582-83 (citing McDonnell Douglas, 411 U.S. at 803). The plaintiff is required to supply comparative evidence of disparate treatment at the prima facie stage of her case, either by identifying those individuals who were treated differently, or by showing that she was terminated and replaced by a person outside the protected class.Shah, 816 F.2d at 268; Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1247 (6th Cir. 1995). To establish that co-workers are in fact "similarly situated," the plaintiff must show that all relevant aspects of the comparable's employment are nearly identical to her own.See Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 801 (6th Cir. 1994).
[T]o be deemed "similarly-situated", the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.Mitchell, 964 F.2d at 583.
Plaintiff has not proffered direct evidence of unlawful discrimination. Neither has plaintiff proffered evidence that she was replaced at FIA by an individual outside the classes of those protected from age and gender discrimination. Therefore, in opposing defendants' instant motion for summary judgment, plaintiff must produce evidence to support a finding that plaintiff was treated differently than a similarly-situated employee for the same conduct. Pierce, 40 F.3d at 801; Mitchell, 964 F.2d at 583. Plaintiff has failed to meet this evidentiary burden of proof. Anderson, 477 U.S. at 247-48; Kraft, 991 F.2d at 296.
On November 30, 1998, Rhonda Smith promoted plaintiff from a "Word Processing Assistant 7" to a "Secretary 9" within FIA's Employee Relations Unit ("ERU"). Akers November 30, 2000 Deposition Transcript ("Tr."), at 150-153. The Secretary 9 position was a "conditional service rating", requiring plaintiff to serve a probationary period and receive periodic performance reviews from her supervisor. Id. at 282-284; Akers January 22, 2001 Tr., at 70. See also Defendants' Exhibit 5 (3 month "PROBATIONARY SERVICE RATING"); Defendants' Exhibit 7 (30 day progress report "PROBATIONARY SERVICE RATING"); Defendants' Exhibit 9 (9 month "PROBATIONARY PERIOD EMPLOYEE RATING"). Less than a month after plaintiff's promotion, Rhonda Smith transferred to another department and was replaced by Acting ERU Manager Vermeulen, who became plaintiff's supervisor in January 1999. Akers November 30, 2000 Deposition Transcript, at 150-153; Vermeulen January 22, 2001 Affidavit, ¶ 2, at 1. Mildred Wilson replaced Vermeulen on June 14, 1999. Wilson January 21, 2001 Affidavit, ¶ 2, at 1. Consistent with her probationary status, Vermeulen and Wilson held conferences with plaintiff, criticizing her work performance. Akers November 30, 2000 Deposition Transcript, at 282-285. Plaintiff testified Vermeulen treated her with disrespect, said she had a bad attitude, said her work was unsatisfactory, and said she was "passive-aggressive". Id, at 173, 204-205, 229. Plaintiff continued that Vermeulen told her "over and over and over" that she was incompetent, immature and unproductive. Id, at 238-239.
A. [by Plaintiff]: — that morning. The morning of the 2nd. It was the worst experience. He called me right in there and he said, Vivian, close the door. Right away my headache came back. I felt like I had to go to the bathroom again. He said, you are incompetent, you are unproductive, you are this, you are that, you have not been at your desk all day. That's when I spoke then. I said, yes, I have been at my desk. I said the only time I did not [sic] leave my desk was when I went to the — I think it was the third floor to turn in some copying to Rapid Copy for the interviews that had to be done.
Q. Okay.
A. And I said, other than that, I have not gone from my desk, I have not taken a break, I have not gone to the bathroom, I have been busy here with these word processing assistant applications, scheduling appointments and everything like that.
Q. Okay.
A. And he says, you're being insubordinate, don't tell me you were not [sic] at your desk when you weren't — don't tell me you were at your desk when you were not at your desk, and he got louder and louder, and I said, I'm not going to let you tell me I was not at my desk when I was at my desk, and that's when he said you are being insubordinate. I said I am not being insubordinate. Then I said, I'm going to get somebody to let you know I was at my desk, so I — don't leave my office. Do not open — come back here. Come back here. He was saying things like that. So I didn't come back.
Q. So you just walked out of his office?
A. Yes, I did. I walked out of his office and I went to get Christine because she knew I was sitting at my desk all that morning —Id, at 250-251. Plaintiff contends that "[Vermeulen] didn't treat me the way he did everyone else, I was the only one." Akers November 30, 2000 Deposition Tr, at 180.
Following plaintiff's probationary period, Wilson demoted her on September 17, 1999 to her former position as a Word Processing Assistant 7 due to "unsatisfactory work performance as a Secretary 9". Defendants' Exhibit 10. Seven months later, on April 5, 2000, plaintiff was discharged for writing an unauthorized December 3, 1999 employment verification request on FIA stationary and sending it to a potential employer on behalf of one Lanita Moore, wherein plaintiff stated she was a "Secretary" that had worked with Moore for one year. See Defendants' Exhibits 11-13. Plaintiff referred to "Ms. Moore's tenure here in the Office of Human Resources [where] she was truly an asset." Defendant's Exhibit 11. At her deposition, however, plaintiff conceded that Moore worked at FIA for only a couple of months, and that Moore was not employed by FIA. Akers January 22, 2001 Deposition Tr, at 122, 124. Rather, Akers explained that Moore had worked with plaintiff on plaintiff's "case" against FIA. Id. at 122-123. FIA Director Gerald Harris explains in a March 9, 2000 letter that Lanita Moore worked as a volunteer at FIA from December 1998 to January 1999. See Defendants' Exhibit 12.
Plaintiff was charged with violating three FIA work rules: (1) actual or attempted falsification of records or reports; (2) actual or attempted misuse, abuse or theft of state property or equipment, and; (3) becoming involved in a conflict of interest situation or failure to properly report conflict of interest situations. See Defendants' Exhibit 13.
Upon reviewing all of the evidence submitted, plaintiff has failed to identify a similarly situated co-worker, subject to the same standards, that was treated differently for the same conduct in the absence of differentiating or mitigating circumstances. Pierce, 40 F.3d at 801;Mitchell, 964 F.2d at 583. Although plaintiff refers to co-workers George Mott, Sande Heyer, Hakiam Bakari and Terri Shopshire as employees that were treated differently for unsatisfactory performance, plaintiff has not produced evidence tending to show that these employees were subject to the higher probationary standards of a "conditional service rating" position — such as the one occupied by plaintiff from November 30, 1998 to September 17, 1999. Indeed, plaintiff admitted at her deposition that Sande Heyer held a higher job classification, Akers November 30, 2000 Deposition Tr, at 228, and that she did not think Mott was on a probationary period when he was periodically counseled by supervision. January 22, 2001 Deposition Tr, at 77-78. Plaintiff's probationary status explains the periodic performance reviews she was subjected to by Vermeulen and, later, Wilson. Pierce, 40 F.3d at 801; Mitchell, 964 F.2d at 583. Simply put, plaintiff has failed to produce evidence that Vermeulen's and Wilson's emphasis on plaintiff's performance during the probationary period, and alleged harsh evaluations, were motivated by plaintiff's age or gender.
As to plaintiff's ultimate discharge, at a time when she was no longer on a probationary status, plaintiff has failed to identify another FIA employee who engaged in conduct similar to writing an unauthorized employment verification request on behalf of FIA, on FIA stationary, which contained misleading, if not false, information that Lanita Moore enjoyed a "tenure" at FIA of one year. Mitchell, 964 F.2d at 583. Plaintiff's reference to 3 internal e-mails sent by Marion Foehr (joke e-mail) and Sarah Johnson (religious message e-mail) are not similar conduct. Plaintiff has also failed to demonstrate that Foehr and Johnson were similarly situated employees. Likewise, an anonymous fax sent to plaintiff regarding racial prejudice does not evidence that a similarly situated employee was treated differently than plaintiff for the same conduct.
Construing the pleadings and evidence in a light most favorable to plaintiff, plaintiff cannot prove a prima facie case of age or sex discrimination as a matter of law in that plaintiff cannot prove that she was treated differently than similarly situated members of the unprotected class. Mitchell, 964 F.2d at 582-83; Winningham, 42 F.3d at 984; Anderson, 477 U.S. at 247-48; Kraft, 991 F.2d at 296. Defendants are entitled to summary judgment of plaintiff's disparate treatment claims as a matter of law. Id.
D. Hostile Work Environment
To maintain a hostile work environment claim under Title VII based on age or gender, the plaintiff must show: (1) she is a member of the protected class; (2) she was subjected to harassment based on her age or gender; (3) the harassment had the effect of unreasonably interfering with her work performance and creating an objectively intimidating, hostile or offensive work environment, and; (4) some basis of liability on the part of the employer. See Crawford v. Medina General Hosp., 96 F.3d 830, 834-835 (6th Cir. 1996) (involving ADEA claims and citingRisinger v. Ohio Bureau of Employment Services, 883 F.2d 475, 484 (6th Cir. 1990); Harris v. Forklift Systems Inc., 510 U.S. 17, 20 (1993) (involving Title VII gender discrimination claims)).
As set forth in Section III, C, plaintiff has failed to proffer evidence that she, herself, was treated differently because of her age or gender. Plaintiff testified repeatedly in her deposition that other female employees and employees over age 40 were treated well, if not favorably. See Akers November 30, 2000 Deposition Tr, at 178-180. Defendants are entitled to summary judgment as a matter of law in that plaintiff has not produced evidence tending to show that she was subjected to a age hostile, or gender hostile, work environment. Crawford, 96 F.3d at 834-835; Winningham, 42 F.3d at 984; Anderson, 477 U.S. at 247-48;Kraft, 991 F.2d at 296.
15 employees worked within the ERU office during the time in question. 13 were females, 3 of which were under age 40. The two male employees were age 44 and 46. Plaintiff was 54 years of age on April 2, 1999. See Defendants' Brief, at 5 n. 4; Defendants' Exhibit 4.
IV. Conclusion
For the reasons set forth above, defendants' motion for dismissal/summary judgment is hereby GRANTED. Plaintiff's claims are hereby DISMISSED with prejudice in their entirety.
SO ORDERED.