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finding an absence of discriminatory animus where plaintiff was treated the same as similarly situated, younger employees
Summary of this case from Staffieri v. Nw. Human Servs., Inc.Opinion
CIVIL ACTION NO. 02-8231
October 24, 2003
MEMORANDUM
Introduction
Adam Andy ("Plaintiff) alleges that his employer United Parcel Service, Inc. ("UPS" or "Defendant") violated the Age Discrimination and Employment Act ("ADEA"), 29 U.S.C. § 621 et. seq., and the Pennsylvania Human Rights Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 951 et. seq., by terminating his employment because of age. UPS contests this charge alleging a legitimate, non-discriminatory reason for its termination of Plaintiff — namely that Plaintiff violated its anti-favoritism policy by engaging in an inappropriate relationship with a female subordinate. The issue is whether or not Defendant's Motion for Summary Judgment should be granted. Oral argument was heard on this matter on September 15, 2003. Defendant's Motion will be granted.
Legal Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. at 2554. After the moving party has met its initial burden, "the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.
In determining whether or not to grant summary judgment in an employment discrimination case, this Court must apply the burden-shifting analysis established in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 93 S.Ct. 1817(1973); Keller v. Orix Credit Alliance, 130 F.3d 1101, 1108 (3d Cir. 1997). In order to establish a prima facie case of discrimination, the plaintiff must demonstrate the existence of four elements:
The Third Circuit has applied this analytical framework to both the ADEA and the PHRA. See Simpson v. Kay Jewelers. 142 F.3d 639, 644 n. 5 (3d Cir. 1998) ("Under the McDonnell Douglas line of cases, as applied to the ADEA and the analogous provision of the PHRA, there are three steps in the analysis of pretext discrimination cases."); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (noting that "[w]hile the Pennsylvania courts are not bound in their interpretations of Pennsylvania law by federal interpretations of parallel provisions in Title VII, the ADA, or the ADEA, . . . its courts nevertheless generally interpret the PHRA in accord with its federal counterparts.") (citations omitted).
(i) [that] the plaintiff was a member of the protected class, i.e., was 40 years of age or older (see 29 U.S.C. § 631(a)), (ii) that the plaintiff was discharged, (iii) that the plaintiff was qualified for the job, and (iv) that the plaintiff was replaced by a sufficiently younger person to create an inference of age discrimination.Id. (citing Sempier v. Johnson Higgins, 45 F.3d 724, 728 (3d Cir. 1995)).
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 1094-95 (1981). The Defendant satisfies its burden of production by introducing evidence, which, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). The defendant need not prove that the tendered reason actually motivated its behavior because the ultimate burden of proving intentional discrimination always rests with the plaintiff. Id.
If the defendant is able to come forward with a legitimate, non-discriminatory reason for its action, the plaintiff can defeat a motion for summary judgment by proffering evidence from which a factfinder could reasonably either (1) disbelieve the defendant's articulated legitimate reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the defendant's action. Id. at 764. Therefore, a plaintiff may defeat a summary judgment motion by either "(i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Id. However in discrediting the defendant's proffered reason, the plaintiff cannot simply show that the defendant's decision was wrong or mistaken because the factual dispute at issue is whether discriminatory animus motivated the defendant's actions. Id. at 765. What is at issue is the perception of the decision maker, not the plaintiff's view of his own performance. Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991) (citations omitted); see also Ezold v. Wolf. Block. Schorr and Solis — Cohen, 983 F.2d 509 (3d Cir. 1993), cert. denied, 510 U.S. 826 (1993) (pretext turns on the qualifications and criteria identified by the employer, not the categories the plaintiff considers important).
Background
Plaintiff began his employment at UPS in 1972 and remained with the company until being discharged on June 22, 2000. (Pl's Depo. at 27, 140-143.) During this period of time, Plaintiff held several positions with UPS, beginning with a clerical position at its Harrisburg, Pennsylvania facility. (Id. at 27.) Five years later, in 1977, UPS promoted Plaintiff to his first supervisory position as a Delivery Information Supervisor. (Id. at 28.) For the next several years, until 1990, Plaintiff held three more supervisory positions, working as a Wall Supervisor, Loss Prevention Supervisor and a Road Supervisor. (Id. at 28-30.) Then, in 1990, Plaintiff became a Human Resources Supervisor. (Id. at 30.) While in this position, Defendant contends that Plaintiff became extremely familiar with UPS' anti-favoritism policy — a fact that Plaintiff does not dispute. (Def's Mem. in Supp. of Summ. Judgment at 1.) By Plaintiffs own admission, he knew of and understood the policy, which, in the past, he had been required to enforce. (Pl.'s Depo. at 196.) Finally, in 1998, UPS promoted Plaintiff to a managerial position, making Plaintiff an Operations Manager (sometimes referred to as a Business Manager) at its Lancaster, Pennsylvania facility. Plaintiff held this title until his termination in 2002. (Id. at 33.) During Plaintiffs entire period of employment with UPS, from 1972 up to the events surrounding his termination, Plaintiff never received a formal complaint regarding his performance and had never been disciplined. (Id. at 26); (Hoffman Depo. at 8.)
At the time of his termination, Plaintiff was fifty-two years old and only three years away from becoming eligible for early retirement benefits. (Forgue Depo. at 36.) His replacement was forty-five. As such, Plaintiff contends that age discrimination motivated the decision by his supervisors at UPS to terminate his employment.
In contrast, Defendant contends that it terminated Plaintiff for violating its anti-favoritism policy by engaging in an inappropriate relationship with a female subordinate named Alison. Plaintiff's supervisors became aware of an apparently close relationship, beginning in May of 2000 through several workplace incidents and conversations, in the workplace, that alluded to the purported relationship. UPS subsequently confronted Plaintiff with the allegations against him. In total, Plaintiff and his supervisors discussed this issue at three meetings and during one phone call. In each confrontation, Plaintiff flatly refused to answer questions regarding his out-of-work relationship with Alison. Ultimately, this refusal to answer resulted in Plaintiff's termination. The incidents and conversations leading up to these meetings and the details of the meetings themselves, which Plaintiff does not contest, are recounted below.
On August 28, 2003, this Court entered an Order requiring Plaintiff and Defendant to submit Statements of Disputed Material Facts, and to respond to the other party's statements. These filings reveal that both parties agree that the above mentioned meetings and phone conversation occurred. They also do not dispute the substance of their relevant discussions.
The first workplace incident brought to the attention of Plaintiffs supervisors involved CB radio banter by part-time supervisors during the work day at the plant. (Heckman Depo. at 6.) Alison had complained that the part-time supervisors were using code names to refer to her and plaintiff. (Alison Depo. at 47-48.) She also complained that, in their conversations, the part time supervisors intimated that she and plaintiff were intimately involved by making such statements as, wherever Plaintiff could be found, she would surely be as well. (Id. at 47.) In response, Philip Heckman ("Heckman"), UPS' District Employee Relations Manager, confronted Plaintiff regarding this matter. (Heckman Depo. at 6.) In their conversation, Plaintiff acknowledged being aware of the situation and stated that it had been taken care of. (Id. at 6.) Heckman thereafter reported this situation to Plaintiff's immediate supervisor, Division Manager, Michael Hoffman ("Hoffman"). (Id. at 9-10.)
Thereafter, on June 19, 2000, coworkers of Alison complained to Hoffman that she had been the beneficiary of improper favoritism by Plaintiff, alleging that Plaintiff reassigned her to work the desirable day sort, (Hoffman Depo. at 27-28), which involved loading and unloading trailers at the UPS facility. (Pl's Depo. at 52.) Employees viewed this assignment favorably due to its early hours. The day sort began at noon whereas the regular sort began roughly at 4:30 p.m. (Id. at 48, 63.) In this instance, Alison's coworkers complained that she had been improperly placed in charge of the day sort rather than one of them.
Also in early June of 2000, UPS' Human Resources Manager, Randy Smith, reported to Mr. Heckman about workplace conversations that he had heard regarding Plaintiff's relationship with Alison. These conversations alleged that Plaintiff and Alison had been seen dining together and that they were looking to buy a house together in Quarryville, Pennsylvania, where she lived. (Heckman Depo. at 7.)
At about the same time the above workplace conversations came to light, an incident occurred at Plaintiff's workplace that further raised the suspicions of his supervisors. This incident took place during a visit by Plaintiffs supervisor, Mr. Hoffman. During this visit, Hoffman asked UPS Feeder Supervisor Mike Frick if he knew where he could find Plaintiff. In response, Frick stated that Plaintiff "was out checking the yard with his girlfriend." (Hoffman Depo. at 11); (Pl's Depo. at 82-83.) Hoffman relayed this comment to Plaintiff who stated that the comment lacked veracity and that he would take care of it. (Hoffman Depo. at 12); (Pl's Depo. at 82-83.)
On June 15, 2000, subsequent to the aforementioned incidents and rumors, Mr. Hoffman and Timothy McKendry, UPS' District Security Manager, approached Plaintiff to discuss his relationship with Alison and to give Plaintiff an opportunity to explain the nature of that relationship. During this meeting, Plaintiff contends that Hoffman (who conducted the questioning) asked him about sexual harassment and the nature of his relationship with Alison. (Pl's Depo. at 87-88, 94.) Plaintiff responded that he and Alison enjoyed a professional relationship. (Id. at 88.) However, when the questioning turned to Plaintiff's relationship with Alison out of work, Plaintiff refused to answer. (Id. at 88, 92.) Following this meeting, Mr. Hoffman walked Plaintiff to his car and told him that he wanted to save Plaintiff's job and would call him the next day. (Id. at 99.)
The next day, Hoffman called Plaintiff. In the course of their conversation, Hoffman again asked Plaintiff about his out-of-work relationship with Alison. Again, Plaintiff responded that he would not answer such "personal" questions. (Id. at 111.)
At this point, Hoffman's supervisor, Heckman, became involved in the investigation, and on June 20, 2000 Hoffman and Heckman met with Plaintiff. (Heckman Depo. at 12-13.) This time, Heckman asked Plaintiff about whether or not his relationship with Alison "extended beyond a professional relationship," but Plaintiff still refused to answer. (Id. at 13-14.)
In his deposition Plaintiff does not have a clear recollection of the meeting of June 20, 2000. (Pl's Depo. at 132-133.) However, nowhere, in his deposition or elsewhere, does Plaintiff claim to have dispelled the allegations against him by answering the questions posed to him at any time regarding his out-of-work relationship with Alison.
Because no progress had been made in the meetings of June 15th and June 20th and the phone call of June 16th, the UPS management decided to terminate Plaintiff's employment on June 22, 2000. This final meeting was attended by Plaintiff, Hoffman and Heckman. Hoffman again questioned Plaintiff if he wished to "cooperate with the investigation," to which Plaintiff flatly stated "[n]o, I am not going to cooperate with the investigation." (Id. at 140.) Plaintiffs supervisors then brought up the issues of favoritism and dishonesty and gave him the option to resign or be terminated. (Id. at 141, 143.) Because Plaintiff refused to sign paperwork provided to him by UPS, he was terminated. (Id. at 141-142.)
Discussion
I. Plaintiff Established His Prima Facie Case
The undisputed facts in the present case point to the conclusion that Plaintiff has established a prima facie case for age discrimination. One, Plaintiff when terminated was fifty-two years old. Two, UPS terminated Plaintiff's employment. Three, Plaintiff was qualified for the job as illustrated by his more than twenty-seven years of service to the company without complaint or disciplinary action taken against him. Four, Plaintiff was replaced by a person seven years his junior, which this court finds sufficient to create an inference of age discrimination. See Sempier v. Johnson Higgins, 45 F.3d 724, 728 (3d Cir. 1995) (setting forth the criteria by which to establish a prima facie case for age discrimination).
II. Defendant Proffers a Legitimate, Non-discriminatory Motive, Rebutting Plaintiff's Prima Facie Case
In response to Plaintiff's prima facie case, Defendant cites a series of incidents that it contends were legitimate and non-discriminatory and establish a permissible basis for its termination of Plaintiff. In support of these contentions, UPS relies on its policy regarding discrimination and sexual harassment, which prohibits inappropriate relationships because they can result in the perception of favoritism and create the basis for other allegations such as sexual harassment. The policy states in part that:
Relationships, between employees, other than professional relationships, can lead to detrimental effects in the workplace and with our customers; affect the respect, dignity and rights of co-workers; and may incur liability on the part of our company. Unprofessional relationships potentially expose participants and our company to allegations of sexual harassment, favoritism, conflict of interest and breach of confidentiality. Each of us has the responsibility for creating and maintaining professional relationships.
(Def's Mem. in Supp. of Summ. Judgment Ex. A at 17.)
As such, this Court concludes that Defendant, by claiming that Plaintiff has engaged in an inappropriate relationship, has established a legitimate, non-discriminatory justification for Plaintiff's termination. See Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) (setting forth the criteria for establishing a legitimate, non-discriminatory justification.).
III. Plaintiff Failed to Carry His Burden of Showing that Defendant's Proffered Legitimate, Non-Discriminatory Reason was Fabricated or That Defendant's Actions were More Likely Than not Motivated by Discriminatory Animus
A. Plaintiff Fails to Present Evidence that would Allow a Trier of Fact to Disbelieve Defendant's Legitimate, Non-Discriminatory Reasons
After a careful review of the record, this Court concludes that Plaintiff presents no evidence to create a genuine issue of material fact regarding the credibility of Defendant's legitimate non-discriminatory reasons for terminating Plaintiffs employment. Plaintiff's factual contentions fail because: (1) they do not call into question the sincerity of his supervisors' perception and (2) because Plaintiff fails to point to any inconsistencies in Defendant's proffered legitimate, non-discriminatory explanation strong enough to overcome the ample evidence that no discrimination occurred.
1. Plaintiff's Present Assertion that he did not Engage in an Inappropriate Relationship does not Raise an Issue of Fact for Trial because the Record is not Disputed that Defendant was Entitled to Conclude there was an Inappropriate Relationship
As stated above, the Court must look only at the perception of the decision maker, not the plaintiff's own view of his performance. Billet. 940 F.2d at 825. "The fact that an employee disagrees with an employer's evaluation of him does not prove pretext." Id. Hence, it follows that Plaintiff's disagreement with his supervisors' perception of an inappropriate relationship does not, by itself, prove pretext.
Plaintiff's supervisors decided to terminate Plaintiff based on their perception that the aforementioned workplace incidents and conversations sufficiently proved the existence of an inappropriate relationship between Plaintiff and Alison. Plaintiff failed to dispel that perception by repeatedly refusing to answer his supervisors' questions. Therefore, his present contention that an inappropriate relationship did not, in fact, occur cannot give rise to a genuine issue of material fact regarding the sincerity of his supervisors' perception that it did. See Id. at 828 ("[A]n employer's articulated reasons are not incredible simply because the employee asserts that such is the case.").
For Plaintiff's current assertion to impact on the sincerity of his supervisors' perceptions, the information he now proffers would also have to have been known by his supervisors prior to his termination. In this regard, Plaintiff's reliance on Brewer v. Quaker State Oil Refining Corporation is misplaced. There, the Court addressed the issue of whether or not the plaintiff presented more than a subjective opinion regarding the adequacy of his performance. 72 F.3d 326 at 331 (3d Cir.). While the Court need not decide that exact issue, the type of evidence presented by Brewer illustrates how Plaintiff failed to meet his burden.
In Brewer, the plaintiff rebutted his employer's charge that his work performance had been sub-optimal by showing that during the relevant time period his employer had rated him as "fully acceptable," that he received a bonus for surpassing his sales quota and was the only person in his region to exceed his quota for those years. Brewer. 72 F.3d at 331. In contrast, Plaintiff simply presents his own assertions that he and Alison were only friends, that they did not look into buying a house together, they did not act inappropriately at work and that Defendant's allegation of favoritism, therefore, lacks foundation. (Pl's Depo. at 71-72, 82-83, 84, 85, 193.) Whereas Brewer's supervisors had ready access to the facts he provided, Plaintiff's supervisors had no way of confirming his assertions except by questioning him about the extent of his relationship with Alison. Because Plaintiff refused to answer these questions, he kept pertinent information locked up and away from those who would ultimately determine the future status of his employment with UPS. Consequently, Plaintiff's current contentions do not create a genuine issue of material fact regarding the perceptions of his supervisors and whether or not their decision to terminate him for violating UPS' favoritism policy constituted pretext.
2. Plaintiff does not Present an Inconsistency in Defendant's Legitimate, Non-Discriminatory Explanation Strong Enough to Require This Court to Deny Summary Judgment
Plaintiff also argues that proof UPS fabricated its charge of anti-favoritism lies in the fact that UPS first approached him expressing concerns about sexual harassment. (Pl's Depo. at 87-98.) At oral argument, Plaintiff argued that UPS only later accused him of violating its anti-favoritism policy, at the termination hearing, suggesting the inference that UPS made this charge only after it became clear that no other charges could legitimately be made against Plaintiff. (Oral Arg. Trans. 5/11/2003 at 33.) This inconsistency, Plaintiff contends, demonstrates that UPS charged Plaintiff with violating its anti-favoritism policy as a pretext for its discriminatory termination of Plaintiff based upon his age. (Id.) However, this does not create an issue of fact for trial. Regardless of UPS' stated reason for terminating Plaintiff, the uncontested record evidence supports UPS's decision as legitimate and non-discriminatory. Defendant was aware of various workplace incidents and conversations indicating the existence of an inappropriate relationship between Plaintiff and Allison. Additionally, Plaintiff never dispelled his managers' suspicions, refusing to answer all questions regarding his out-of-work relationship with Alison. Consequently, the asserted inconsistency pointed to by Plaintiff cannot create a genuine issue of material fact.
To discredit an employer's legitimate, non-discriminatory justification, a plaintiff must "demonstrate such `weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reason for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] non-discriminatory reasons.'" Brewer, 72 F.3d at 331 (quoting Fuentes, 32 F.3d at 765). Moreover, in considering the dishonesty of an employer's decision, the Supreme Court has held, in a decision upholding a jury verdict for the plaintiff, that where appropriate,
"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination."
Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 2108 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 517, 113 S.Ct. 2742, 2749, 2752 (1993).
The Court has carefully considered the evidence of record to determine whether Plaintiff has carried his burden in creating a triable issue of material fact. Plaintiff has presented this Court with a prima facie case for age discrimination and has set forth a supposed inconsistency that casts doubt on the credibility of Defendant's legitimate, non-discriminatory explanation. However, a more detailed analysis reveals that the Supreme Court in Reeves did not go so far as to hold that plaintiffs always prevail in such cases. Id. at 148, 120 S.Ct. at 2109. "For instance," the Court held that judgment as a matter of law would be appropriate, "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id.
While Reeves considered the appropriateness of a Rule 50 motion for judgment as a matter of law, its analysis also properly applies to the present case, as the Supreme Court held that "the standard for granting summary judgment `mirrors' the standard for judgment as a matter of law, such that `the inquiry under each is the same.'" Reeves. 530 U.S. at 150, 120 S.Ct. at 2110 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986)).
In the present case, the inconsistency between Defendant's initial expression of concern regarding sexual harassment and its later allegation that Plaintiff violated its anti-favoritism policy presents little more than a "weak issue of fact" as to the credibility of UPS' stated legitimate, non-discriminatory explanation for its termination of Plaintiff. Additionally, Defendant has presented this Court with abundant, uncontroverted evidence that no discrimination occurred.
When faced with the possibility of an inappropriate relationship between one of its supervisory employees and one of his subordinates, UPS did not act unreasonably in initially expressing concern regarding sexual harassment in the workplace. Sexual harassment claims carry with them a very negative connotation and can do much to tarnish a corporation's image. UPS had a legitimate business interest in undertaking an investigation and trying to work with Plaintiff so that the workplace situation did not result in litigation against UPS. The likelihood that a corporation will face litigation regarding such a matter has grown increasingly more probable in recent years. See Martha S. West,Preventing Sexual Harassment: The Federal Court's Wake-Up Call for Women. 68 Brooklyn L. Rev. 457, 523 n. 3 (2002) ("Charges of harassment based on sex filed with the EEOC doubled during the 1990s. In fiscal year 1990, the EEOC received 2, 217 charges claiming harassment based on sex, representing 3.6% of 1990 charges.") (citing EEOC, Trends in Harassment Charges Filed With the EEOC During the 1980s and 1990s, available at http://www.eeoc.gov/); Theresa M. Beiner, Let the Jury Decide: the Gap Between What Judges and Reasonable People Believe is Sexually Harassing. 75 S. Cal. L. Rev. 791, 846 (2002) ("The search HEf("sexual harassment") DA(aft 01/01/2000) in the federal district courts database on Westlaw for 2000 and 2001 pulled up well over two hundred cases."); Carrie A. Bond Note: Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace. 65 Fordham L. Rev. 2489, 2489-2490 (1997) ("The Equal Employment Opportunity Commission ("EEOC"), the government agency responsible for ensuring equal employment in the workplace, has a backlog of over 80,000 sexual harassment cases."). Hence, UPS had good cause to conduct an initial investigation as to whether or not Plaintiff's suspected conduct might expose it to sexual harassment litigation.
The Court, therefore, holds that Plaintiff has not shown an inconsistency sufficient to create a genuine issue of fact based on his assertion that an investigation that commenced as to sexual harassment concluded with a finding that Plaintiff violated UPS' anti-favoritism policy. UPS cannot be faulted for investigating both claims as both appear in its policy on discrimination and sexual harassment. As stated above, UPS' policy recites that "[u]nprofessional relationships potentially expose participants and our company to allegations of sexual harassment,favoritism, conflict of interest and breach of confidentiality." (emphasis added). The policy makes clear that inappropriate relationships can lead to sexual harassment and favoritism. Hence, the Court cannot find an issue of inconsistency because, based on the policy itself, an investigation of one may lead to an investigation of the other.
Finally, Plaintiff's complaint of inconsistency cannot stand against the absence of any evidence that discriminatory animus played a role in Defendant's decision to terminate Plaintiff's employment. As stated above, Plaintiff does not contest the fact that incidents occurred in the workplace and conversations circulated that he and Alison had engaged in an inappropriate relationship. Plaintiff only attacks the veracity of these conversations and workplace incidents. Plaintiff also does not contest that he failed to respond to Defendant's questions regarding his out-of-work relationship with Alison. In fact he admits it. This refusal to answer Defendant's questions buttresses UPS' belief that Plaintiff violated its anti-favoritism policy and strengthens UPS' claim that it did not act with discriminatory animus. Hence, given the weakness of the inconsistency pointed to by Plaintiff and the abundant uncontested evidence that discrimination did not play a role in Defendant's decision, the Court cannot find that Plaintiff succeeded in creating a material issue of fact sufficient to survive summary judgment.
Plaintiff also argues that Defendant did not act pursuant to its stated legitimate, non-discriminatory reason for terminating him, but acted, instead, because of his failure to answer questions about his out-of-work relationship with Alison. (Oral Arg. Trans. 9/11/2003 at 33.) Again, even if Plaintiff can show this to be true, he still cannot survive summary judgment, as such evidence does not address the dispositive issue — whether or not UPS acted with discriminatory animus. Indeed, several courts have held that failure to answer questions posed by one's supervisor constitutes a legitimate, non-discriminatory basis for termination and other forms of adverse employment action. See e.g.,Birone v. Indian River Sch., No. 97-3212, 1998 U.S. App. LEXIS 7603, at *12-13 (6th Cir. Apr. 15, 1998) (affirming summary judgment finding that employee's repeated refusal to answer her employer's questions constituted a legitimate, non-discriminatory basis for adverse employment action); Allocco v. City of Coral Gables, 221 F. Supp.2d 1317, 1371 (S.D. Fla. 2002) (granting summary judgment where police officers refused to answer questions, as such conduct constitutes insubordination, which threatens "order, discipline, and loyalty."); Green v. La., No. 99-1606, 2001 U.S. Dist. LEXIS 5945, at *31 (E.D. La. May 3, 2001) (granting summary judgment on the basis that Plaintiff's "refusal to participate in the department's administrative investigation prior to his termination" constituted a legitimate, non-discriminatory justification for termination of employment.).
B. Plaintiff does not Present any Evidence that Discrimination Was More Likely Than Not the Motivating Factor Behind Defendant's Decision to Terminate Plaintiff
Plaintiff has no evidence that discrimination was more likely than not the motivating factor driving its decision to terminate plaintiff. First, the issue of whether or not Defendants held a mistaken belief regarding Plaintiff's relationship with Alison plays no role in the decision of this Court. The focus belongs, instead, on the issue of whether or not UPS acted with discriminatory animus. Fuentes, 32 F.3d at 765. Second, Plaintiff fails to point to any instances in which UPS treated other similarly situated, younger employees more favorably. In fact, Defendant points to uncontested evidence that it has treated similarly situated, younger employees in exactly the same way as Plaintiff, dispelling any notion that discriminatory animus propelled its decision to fire Plaintiff.
1. Whether or Not Defendant Reached an Incorrect Conclusion in Deciding to Terminate Plaintiff's Employment is Irrelevant; The Only Relevant Consideration is Whether or Not Discriminatory Animus Motivated Defendant's Decision
As stated above, "[P]laintiff cannot simply show that the defendant's decision was wrong or mistaken because the factual dispute at issue is whether discriminatory animus motivated the defendant's actions."Fuentes, 32 F.3d at 765. In the present case, Plaintiff argues that his managers' concerns regarding his alleged violations of UPS' anti-favoritism policy lacked foundation. This argument has no bearing on whether or not discriminatory animus motivated Defendant's actions.
In deciding whether or not discriminatory animus played a role in Defendant's termination of Plaintiff's employment, the Court must focus on the perceptions of Defendant's managers. Billet, 940 F.2d at 825. However, Plaintiff casts no doubt on Ms supervisors' contention that they acted only pursuant to the perceived existence of an inappropriate relationship. He only challenges the correctness of their conclusion, arguing that, in fact, he and Alison did not engage in an inappropriate relationship and he did not show her favoritism. This assertion in no way controverts the honest belief of Plaintiff's supervisors that such a relationship did occur and that favoritism was an issue that warranted an investigation under the UPS policy. Moreover, Plaintiffs contention that no relationship occurred between him and Alison cannot controvert the uncontested evidence to the contrary and upon which his supervisors relied — that workplace incidents and conversations alluded to the existence of a relationship and that Plaintiff refused, in three meetings and one phone call, to answer any questions regarding his out-of-work relationship with Alison.
Therefore, after a complete review of the record, Plaintiff fails to show discriminatory animus. As this Court previously stated, Defendant possessed ample facts upon which to terminate Plaintiff for violating its anti-favoritism policy. Plaintiff does not dispute this evidence. He concedes that the aforementioned workplace incidents occurred and that conversations did circulate throughout the workplace about his alleged relationship with Alison. Moreover, Plaintiff ignored second chances to refute the charges against him by refusing to answer his employer's questions. Thus, Plaintiff cannot now argue that Defendant acted with discriminatory animus based on an understanding of events that, up to now, were known only to him. While Plaintiff may be correct that he and Alison did not engage in an inappropriate relationship, he kept that information locked up and away from his supervisors. Plaintiff's refusal to answer his supervisors' questions granted his employer the option to discipline him.
In oral argument, Plaintiff argued that given Plaintiff's exemplary record at UPS, that termination constituted a draconian measure. (Oral Arg. Trans. 9/11/2003 at 29.) Even accepting this as true, it does not alter the Court's analysis. Once, a violation of UPS' anti-favoritism policy occurred, Defendant became free to apply whatever punitive step that was available to it. Just because UPS chose the most extreme measure does not bear on the dispositive factor in this case whether or not discriminatory animus motivated that decision.
2. Plaintiff Fails to Demonstrate That Defendant Treated Other Similarly Situated Individuals, Outside of the Protected Class More Favorably
Plaintiff's contention that Defendant treated other similarly situated individuals (over the age of 40) more favorably is unsupported by the record and, therefore, cannot survive a motion for summary judgment. In Plaintiff's filings with the Pennsylvania Human Rights Commission ("PHRC"), attached to Plaintiff's Complaint as Exhibit A, Plaintiff names two individuals, under the age of forty, who he claims violated the same policy but received more favorable treatment. Defendant, however, has presented uncontested facts illustrating significant differences between Plaintiff and the named individuals showing them not to be similarly situated. Defendant has also proffered evidence, which Plaintiff does not contest, showing that Defendant has treated other individuals, under and above the age of forty in a manner similar to its treatment of Plaintiff.
In an employment discrimination case, a plaintiff can give rise to an inference of pretext by showing that his employer treated other similarly situated individuals outside of the protected class of people over the age of forty more favorably. See Simpson v. Kay Jewelers, 142 F.3d 639, 646 (3d Cir. 1998). Precedent from this Court has defined "similarly situated," to mean "similar `in all relevant respects.'" Singh v. Wal — Mart Stores, Inc., No. 98-1613, 1999 U.S. Dist. LEXIS 8531 at * 19 (E.D. Pa. June 10, 1999) (quoting Kline v. Kansas City. Mo., Fire Dept., 175 F.3d 660, 670 (8th Cir. 1999)) (granting summary judgment in a cause of action for discrimination based on national origin). Additionally, the Third Circuit has held that the "plaintiff has the burden of demonstrating that similarly situated persons were treated differently." Simpson, 142 F.3d at 645.
In the present case, Plaintiff states that two individuals under the age of forty, Scott Johnston ("Johnston") and Joe Thomas ("Thomas") received more lenient treatment for the same violations levied against him. In Plaintiffs submissions to the PHRC, Plaintiff claims that Johnston engaged in a sexual relationship with one of his subordinates, but UPS did not terminate his employment. (Pl's Complaint Ex. A.) Plaintiff also states that UPS accused Thomas of favoritism but reassigned him to another job instead of terminating his employment. (Id.)
In response, Defendant contends, through the Declaration of Philip Heckman, that Plaintiff was not similarly situated to Johnston or Thomas. Plaintiff does not contest Defendant's assertions. Hence, this Court must only determine if Defendant distinguishes Thomas and Johnston from Plaintiff in a "relevant respect." Singh, No. 97-3224, 1999 U.S. Dist. EEXIS 8531 at* 19.
Regarding Johnston, Defendant contends that when the incident involving him occurred, he and the female employee involved held non-supervisory, union positions at UPS. (Heckman Decl. ¶ 7.) Plaintiff, in contrast, held a supervisory position and Alison was his subordinate. Defendant contends that the policy regarding discrimination and sexual harassment does not prohibit relationships between non-supervisory employees, as they have no control over each other's professional advancement. (Id. at 7.) However, the policy regarding discrimination and sexual harassment appears to apply to all relationships, referring to relationships between "employees" generally. Nonetheless, it also singles out supervisors and managers, holding them to a higher standard. The second paragraph of the section of the policy titled "Maintaining Professional Relationships and Preventing Sexual Harassment" states that supervisors and managers "set the example for maintaining an environment free of sexual harassment while in the workplace or while conducting UPS business with the public." (Def's Mem. in Supp. of Summ. Judgment Ex. A at 17.) Hence, it is clear that Plaintiff and Johnston cannot be deemed similarly situated, because Plaintiff's role as a manager carried with it greater responsibility and increased accountability. Moreover, the nature of their alleged relationships differed. Whereas Plaintiff purportedly engaged in a "vertical" relationship with a subordinate, Johnston engaged in a "horizontal" relationship with an equal. Consequently, even if the UPS policy facially applies to both relationships, violations of the policy between non-supervisory employees cannot give rise to the same perceptions of favoritism that can arise in a relationship between a supervisor and a subordinate. Furthermore, Defendant explained that by the time Johnston received a promotion to a supervisory position, the alleged relationship had ended as he was married to a different individual, thereby forever dissipating the possibility for perceived favoritism. (Heckman Decl. ¶ 7.) Hence, Defendant illustrates several key differences between Plaintiff and Johnston, precluding them from being found to be similarly situated as a matter of law. See Campbell v. Hamilton County, No. 00-3116, 2001 U.S. App. LEXIS 22884, at * 15 (6th Cir. Oct. 17, 2001) (upholding the trial court's grant of summary judgment in part because "[d]ifferences in job title and responsibilities . . . may establish that two employees are not similarly situated.");Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000) (holding, in a decision upholding the trial court's entry of judgment as a matter of law, that to be similarly situated comparators must "have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances."); Wyant v. Burlington Northern Santa Fe Ry., 210 F. Supp.2d 1263, 1286 (N.D. Ala. 2002) (holding in a motion for summary judgment that plaintiff and her comparators were not similarly situated for the purpose of disciplinary procedures where plaintiff worked in a supervisory position and her comparators did not).
UPS possessed a well founded concern regarding the possibility that favoritism might arise if it permitted a relationship to exist between a supervisory employee and a subordinate. "Academic research on workplace romances demonstrates that the phenomenon results in unique negative organizational consequences, including role conflict, reduced productivity, increased chance for intra-group conflict, and increased possibility of favoritism (real or perceived)." Gary M. Kramer, Limited License to Fish off the Company Pier: Toward Express Employer Policies on Supervisor-Subordinate Fraternization. 22 W. New Eng. L. Rev. 77, 82 (2000). Perceptions of favoritism tend to disrupt the workplace, as they cause "uncomfortable working relationships, reduced morale and productivity, and feelings of jealousy and suspicion among employees."Id. Additionally, if left unchecked, office relationships can later "incite other employees to allege supervisory favoritism and bias if the subordinate is promoted." Niloofar Nejat-Bina, Employers as Vigilant Chaperones Armed with Dating Waivers: The Intersection of Unwelcomeness and Employer Liability in Hostile Work Environment Sexual Harassment Law, 20 Berkeley J. Emp. Lab. L. 325, 339 (1999); see also Randi Wolkenbreit, In Order to Form a More Perfect Union: Applying No-Spouse Rules to Employees Who Meet at Work. 31 Colum. J.L. Soc. Probs. 119, 128 (1997) (noting that where married couples work together "the mere existence of an apparently prejudiced situation may cause morale problems which can adversely impact productivity."). Finally, even municipalities have passed court approved measures to prevent the appearance of favoritism in the work place. See Parks v. City of Warner Robins, 43 F.3d 609, 615 (11th Cir. 1995) (upholding a City's anti-nepotism statute, under equal protection, finding that a rational basis existed to uphold it, which included the city's interest in "reducing favoritism or even the appearance of favoritism . . . [and] the likelihood of sexual harassment in the workplace."). Hence, it cannot be said that UPS acted inappropriately by actively prohibiting relationships between its supervisory employees and their subordinates.
In addressing Thomas, Defendant asserts that Plaintiff and Thomas differ in that UPS did not accuse Thomas of favoritism, but of making inappropriate remarks to an hourly female employee, and that Thomas fully "cooperated" in the investigation against him. (Heckman Decl. ¶ 8.) To show individuals to be similarly situated in all relevant respects, the Second Circuit held that it must be shown that others "engaged in comparable conduct." Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997); see also Alien v. St. Cabrini Nursing Home, Inc., 198 F. Supp.2d 442, 450 (S.D.N.Y. 2002) ("other employees are deemed similarly situated to plaintiff only where they are subject to the same workplace standards and have been disciplined for conduct of comparable seriousness."); Lanear v. Safeway Grocery. 843 F.2d 298, 301 (8th Cir. 1988) (holding that "similarly situated" requires a showing "that the other employee's acts were of `comparable seriousness' to [plaintiff's] own infraction"). In Shumway. the court held this to require the plaintiff to show that others engaged in similar behavior, involving "a long term relationship, harassing behavior and lying." 118 F.3d at 64. In the present case, therefore, Plaintiff must demonstrate that his comparator engaged in an inappropriate relationship and refused to answer his supervisors' questions — a burden that Plaintiff cannot meet.
Plaintiff cannot show that he and Thomas engaged in comparable conduct. Whereas Plaintiff allegedly engaged in an inappropriate relationship with a subordinate, Thomas did not. Likewise, whereas Thomas made inappropriate comments to a subordinate, Plaintiff did not. As such, Plaintiff fails to create a genuine dispute of material fact showing that UPS subjected Plaintiff and Thomas to the same workplace standards and that UPS disciplined them for conduct of comparable seriousness. Alien, 198 F. Supp.2d at 450.
Plaintiff and Thomas also differ in the fact that Thomas cooperated in UPS' investigation regarding his conduct. (Heckman Decl. ¶ 8.) Plaintiff, on the other hand, refused to answer all questions regarding the exact nature of his personal relationship with Alison. In this way, Plaintiff's refusal to comply with all aspects of UPS' investigation can be viewed as magnifying the seriousness of his alleged infraction, thereby establishing a second basis showing Plaintiff and Thomas not to be similarly situated. Hence, this Court cannot find that Plaintiff presents a genuine issue of material fact demonstrating that he and Thomas are similarly situated.
UPS bolsters its claim that it treats all employees alike by citing three specific instances, in which it terminated employees for violating its anti-favoritism policy and by introducing the Declaration of UPS District Manager, Steven Forgue ("Forgue"), that he has personally terminated employees for violation of UPS' anti-favoritism policy. These instances involved both employees within and without the protected class of people over the age of forty. Again, Plaintiff does not contest these facts. UPS states that it terminated Rick Baer, a Division Manager, for violating its anti-favoritism policy. (Heckman Decl. ¶ 9.) Mr. Baer was thirty-nine years old at the time, and, therefore, outside of the protected class. UPS also proffers evidence that it terminated another management employee, Emmanuel Shugart, also thirty-nine at the time, for violating the same policy. (Heckman Decl. ¶ 9.) Likewise, UPS terminated another management employee, Gina Williams for violating the same policy. (Heckman Decl. ¶ 9.) Unlike the last two employees, Ms. Williams was forty-five years old and within the protected class. Nonetheless, she serves to further UPS' illustration that numerous employees, regardless of age, received the same treatment as Plaintiff. Finally, Forgue, who actually terminated Plaintiff, stated that he has discharged a total of three supervisors or managers for violating UPS' anti-favoritism policy. (Forgue Decl. ¶ 3.) All of these individuals were under the age of forty. (Def's Mem. in Supp. of Summ. Judgment at 45); (Forgue Decl. ¶ 3.)
The Third Circuit has held that an employer cannot necessarily rely on its favorable treatment of one individual in a protected class to rebut an inference of discriminatory animus as such "evidence can not be viewed in a vacuum." Simpson, 142 F.3d at 645. It, therefore, follows that a Plaintiff's allegations also cannot be viewed in a vacuum and that UPS strengthens its position by presenting its own evidence of evenhandedness.
Hence, considering the uncontested differences between Plaintiff and Johnston and Thomas and UPS' consistent and uncontested application of its anti-favoritism policy, the Court cannot find that there exists a genuine issue of material fact as to whether or not Defendant acted with discriminatory animus. It must conclude that it did not.
Conclusion
In determining that Plaintiff does not present a genuine issue of material fact, the Court has carefully reviewed the record in light of the applicable standard set forth by the Third Circuit in Fuentes. To rebut an employer's proffered legitimate, non-discriminatory explanation, Fuentes requires a plaintiff to:
point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. In other words, because the fact finder may infer from the combination of the plaintiffs prima facie case and its own rejection of the employer's proffered non-discriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (i) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.
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[T]o avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons, was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).32 F.3d at 764 (internal citations omitted).
Plaintiff has presented no evidence that would permit the Court to either disbelieve the employer's articulated legitimate reasons or believe that it is more likely than not that the employer acted with an invidious discriminatory intent. To the contrary, Plaintiff does not contest the record evidence showing that his supervisors were aware of the workplace incidents and workplace conversations that related to the inappropriate nature of his relationship with Alison. Plaintiff also does not contest that he repeatedly refused to answer his employer's questions relating to the nature of his out-of-work relationship with Alison. He openly admits this fact. Finally, Plaintiff fails to present the Court with evidence of other similarly situated individuals, under the age of forty, who UPS treated more favorably. As such, Plaintiff presents the Court with no evidence whereby to create a genuine issue of material fact as to the sincerity of UPS' non-discriminatory reason for its termination of Plaintiff, or that UPS, more likely than not, acted with discriminatory animus. The record shows that UPS management believed that Plaintiff engaged in an inappropriate relationship with a subordinate that contravened its anti-favoritism policy. As such, UPS took appropriate remedial action by terminating Plaintiff.
Plaintiff's attempt to demonstrate an inconsistency in UPS' conduct towards him also fails to create a genuine issue of material fact as to the sincerity of UPS' legitimate, non-discriminatory basis for his termination. Pursuant to Fuentes, to survive summary judgment "the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence.'" Id. at 765 (quoting Ezold v. Wolf. Block. Schorr Solis — Cohen. 983 F.2d 509, 531(3d Cir. 1992)). However, because UPS had a legitimate reason to fret over the possibility of a sexual harassment suit and because of the close proximity of sexual harassment and favoritism in UPS' employment manual, the Court cannot conclude that UPS' proffered legitimate reason for its action is unworthy of credence.
Consequently, the Court must grant Defendant's Motion for Summary Judgment. An appropriate order follows.
ORDER
AND NOW, this ___ day of October, 2003, it is hereby ORDERED that:1. Defendant's Motion for Summary Judgment (Doc. No. 10) be GRANTED and judgment is entered in favor of Defendant and against Plaintiff.