Opinion
Civil Action No. 03-2589-KHV.
October 25, 2004
MEMORANDUM AND ORDER
Plaintiff alleges that defendant Sprint Corporation ("Sprint") terminated her employment because of gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000et seq., and the Kansas Act Against Discrimination ("KAAD"), K.S.A. § 44-1001, et. seq. This matter is before the Court on Defendant's Motion For Summary Judgment (Doc. #99) filed August 6, 2004. For reasons set forth below, the Court finds that defendant's motion should be sustained.
The complaint originally alleged age and race discrimination as well, but plaintiff has dismissed those claims.See Stipulation of Dismissal Without Prejudice of Certain of Plaintiff's Claims (Doc. #104) filed August 18, 2004.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson, 477 U.S. at 251-52.
Factual Background
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.
Jolinda Vega worked at Sprint for 24 years, from May of 1979 until March of 2003. She started as a mail clerk, and ultimately became a senior director in the IT Department. In late 2002, Sprint implemented a reduction in force ("RIF"). As part of the RIF, Sprint reduced the number of director positions and required all directors to reapply for remaining positions. One of the positions was leader of the Rodeo conversion project. Mike Miller, an assistant vice president, hired the Rodeo project leader. He initially considered three employees — Vega, Derek Sherry and Dean Miles. Miller chose Vega as the best qualified for the job, and she began reporting to Miller on January 3, 2003.
Miller stated that he chose Vega because she had valuable experience working in business, she had worked on the project and understood the application, and she projected a very positive and professional attitude and enthusiasm that she could do the job. Miller assigned Sherry to another position and made Miles a part of the RIF.
As part of the RIF, Vega had terminated Traci Wright, her executive assistant, in January of 2003. During the first week of February, Wright called the Sprint Ethics Hotline to express concerns about Vega's conduct. The Ethics Hotline, also known as the Ethics Helpline, has two purposes: (1) to provide a source for employees, consultants and contractors to determine whether conduct comports with the "Sprint Principles Of Business Conduct" and (2) to provide a telephone number for employees to report conduct that they believe violates the Sprint Principles of Business Conduct. The hotline promises anonymity if requested.
In the first week of February 2003, Wright also sent an e-mail to Vega, Miller and Human Resources ("HR") manager John Shannon, alleging that Vega had (1) required Wright to attend to her personal needs; (2) asked Wright to expense personal PCS phone bills to Sprint; and (3) asked Wright to have other non-management employees sign legal documents (such as work orders) with Vega's signature and tell no one about it. As to Vega's personal needs, Wright stated that Vega asked her to bring food and beverages, handle personal bills, schedule hair and nail appointments, telephone Vega over the weekend to remind her of personal appointments, and fetch Vega's vehicle from the parking garage in cold weather. Shannon contacted Vega and told her that he would review Wright's allegations and get back in touch. Miller contacted HR about how to respond to the issues in Wright's e-mail. HR told him that they would handle it, so he cancelled a scheduled meeting with Wright. Miller did not draw any conclusions about the e-mail or the attachment. He believed that "appropriate channels" should investigate Wright's allegations, and he had no further conversation with Wright.
Shannon asked Sprint's Corporate Security Department ("Corporate Security") to investigate Wright's allegations against Vega. Corporate Security interviewed Vega, as well as Andrea Morgan and Peggy Oglesby, who had previously served as executive assistants for Vega. When Morgan told Vega that Corporate Security was going to interview her, Vega told her "I don't understand why you're concerned, just be truthful."
Corporate Security Interview With Morgan
Paul Bass and Steve Breshears of Corporate Security interviewed Morgan for about two or three hours. Morgan had worked as Vega's executive assistant for the first six months of 2000. In June of 2000 Sprint promoted Morgan to project coordinator and technical analyst, but she continued to work for Vega on an ad hoc basis. Bass and Breshears asked Morgan about any questionable purchases which she might have made using her Sprint Express Buy card. Morgan told them that Vega had called her one day in 2001 and asked her to go to Oak Park Mall. They then went to the Coach store, where Vega picked out a briefcase which Morgan purchased with her Express Buy card. Morgan told Corporate Security that she called another executive assistant to ask how to document the purchase on her Express Buy envelope, and was advised to put it down as office equipment.
Sprint issues Express Buy cards to certain administrative employees to make company purchases. Neither party clearly sets out the policies for using an Express Buy card.
After the interview, Morgan signed a statement which states that she initially reported that the briefcase was for office equipment. At her deposition, Morgan testified that although the executive assistant advised her to write office equipment, she did not. Instead, she testified, she wrote that it was for medical reasons.
During the interview, Morgan stated that after they purchased the briefcase, Vega told her that the finance department (Terry Hampton) had asked about the purchase. Morgan told Corporate Security that Vega told her that if she were questioned about it, Morgan should say that the purchase was for employee recognition. During the interview, Corporate Security showed Morgan an envelope for the briefcase with the words "employee recognition" on it. Morgan, however, denied that she had written those words. Morgan did not write those words, she does not recognize the handwriting, and she did not see the phrase on the envelope when she submitted it to finance. Morgan kept a copy of the envelope, and her copy does not contain the words "employee recognition."
At her deposition, Morgan testified that when she purchased the briefcase, she understood that it was for medical reasons, and on the Express Buy envelope, she wrote "briefcase . . . due to medical issue for director." Morgan also testified:
The one that concerned me about the briefcase was, first of all, I did not think that it was unethical to purchase it, but I worded it specifically to say that it was a purchase for a medical issue, I do believe that, and I don't know when, but JoLinda happened to have a meeting with finance and was asked about this purchase. And she came back to me and communicated that if I was asked, that this was an employee recognition thing. No one ever came back to me about it. . . .
Q: So if Jolinda came back to you and said, "This needs to be employee recognition, that would be contrary to what you wrote and wouldn't make any sense, would it, based on what was purchased?
A: It wouldn't make any sense in my mind. I worded it the way I saw fit. Morgan Depo. at 78:10-21, 79:7-12.
Morgan also testified that she told Corporate Security about the purchase of a PCS phone for Vega with an Express Buy card. On the Express Buy envelope, Peggy Oglesby (an executive assistant for Vega) had originally described the purchase as "PCS replacement phone." Vega later asked Morgan to make the Express Buy envelope "business appropriate," so Morgan changed the description to "business supplies/accessories."
Morgan told Corporate Security about two occasions where Oglesby had expensed Vega's entire phone bill (including bills on her son's phone which she was using at the time), even though the bills contained personal charges which should not have been expensed. Morgan told Corporate Security that she told Vega on two occasions that the personal part of plaintiff's phone bill could not be expensed. Morgan told Corporate Security, however, that Vega had "absolutely not" done anything wrong with respect to the PCS phone bill. Morgan pointed out to Corporate Security that Vega's executive assistant was new and probably did not know the process. Corporate Security omitted this exculpatory information from Morgan's statement.
At her deposition, Morgan acknowledged that expensing is done by administrative assistants. Vega did not literally go into the system and expense; she just submitted expenses to administrative assistants to be expensed.
Morgan told Corporate Security that Vega asked her to sign Vega's name to work orders. According to Morgan, Vega told her to sign Vega's name as closely as possible to her signature and not to say anything about it. At her deposition, Morgan testified that Vega did not tell her whether to place her own initials beside Vega's signature on a work order. Morgan testified that "I have signed things with [Vega's] name, but I have put my initials behind it when I was in an EA role."
After the interview with Corporate Security, Morgan signed a statement which Corporate Security prepared. She made only two changes, to correct names. At her deposition, Morgan testified that Vega never asked her to do anything unethical or anything that Morgan thought should be "hotlined."
Corporate Security Interview With Oglesby
Corporate Security also interviewed Ogles by, who performed miscellaneous assignments for the group in which Vega worked. Until March of 2003, Oglesby had an Express Buy card. She used the card to purchase items at the direction of management, and she had the authority and responsibility to refuse charges that could not be purchased according to policy. Oglesby told Corporate Security that on December 6, 2002, she told Wright to purchase a cell phone for Vega using an Express Buy card. Oglesby understood that Vega needed the phone because her other one was broken. On January 2, 2003, Oglesby wrote "PCS Replacement Phone" on an Express Buy envelope. She signed the envelope, gave it to Wright and told her to have Vega sign it. Oglesby told Corporate Security that Morgan later told her that she had re-written the entry for the phone (from "PCS replacement phone" to "business supplies/accessories") because Vega did not like the wording. Oglesby then became suspicious and looked at the Express Buy guidelines, and found that Express Buy could not be used for telephones.
Until then, Oglesby thought that Sprint policy allowed telephone purchases with an Express Buy card because she had seen Morgan and another administrative assistant buy them.
Corporate Security Interview With Vega
Bass and Loren Procter of Corporate Security interviewed Vega on February 21, 2003. During the interview, Vega felt that Procter's behavior, body language and tone of voice were defensive and inappropriate. She described Procter's body language as "very, very intimidating." He sat close to Vega, leaned his chair back and forth in a rocking motion, crossed his arms over his chest and made sounds of disgust. At one point, Procter leaned forward and said that he was a Sprint stockholder and that "you people at Sprint are off buying things." Bass interrupted Vega twice during the interrogation to tell her that she was not allowed to ask questions. Bass walked around the room, which created an intimidating, stressful atmosphere for Vega. During the interview, Bass or Procter told Vega, "You're an intelligent, smart woman," and "Miss Vega, you've been with the company many years, you need to tell the truth because we could help you out here." Exhibit A to Defendant's Memorandum In Support Of Motion For Summary Judgment (Doc. #100) filed August 6, 2004, Vega Depo. at 80. Vega described the interview as "an interrogation and criminal-like approach and totally unprofessional."During the interview Vega told Bass that she had purchased the briefcase because she used a smaller, lighter computer, "something about a medical reason." He did not include the medical explanation in his interview notes; to him, it was not important whether Vega had approval to purchase the briefcase — that was management's decision. Vega testified that during the interview, Bass first asked whether she recalled a purchase in 2001 for X amount, to which she said no. He then told her she needed to be truthful, handed her the Express Buy envelope for the briefcase and asked if she had purchased it. She said yes and told him that she had purchased it for medical reasons. At her deposition, Vega testified that the briefcases in the Sprint catalog were too bulky and caused neck, shoulder and back pain, and that Morgan had suggested that she purchase a briefcase at the Coach store. Vega asked Morgan if she had checked the processes and validated this with Marion Douglas. Morgan said that she had. Vega also testified that Cloene Davis, her supervisor, approved the purchase of the briefcase. Vega used the briefcase from 2001 until Sprint terminated her employment.
Bass' interview notes state that Vega told him that Terry Hampton from Finance had called to ask about the briefcase, and that she told him that it was an employee recognition gift. Bass' notes also state that when Hampton called, Vega said that she did not tell him the truth. Vega's deposition testimony contradicts Bass' notes. Vega testified that she did not lie to Hampton and that she did not tell Hampton that the briefcase was an employee recognition gift. When Bass asked Hampton about calling Vega concerning the briefcase, Hampton did not recall the conversation. Bass' report, however, does not include this fact.
After the interview, Vega left the room while Bass drafted a statement for her to review. Vega called her lawyer and conferred for ten or fifteen minutes while she waited to review the statement. About two hours after the interview concluded, Bass asked Vega to review and sign the statement. Vega asked if she could review it outside the Corporate Security offices, and he said no. After ten to 20 minutes reviewing and correcting some parts of the statement, Vega told Bass, "This is not an accurate reflection of the conversation we have — we have had, and I refuse to sign this, and I refuse to spend any more time in correcting it because you are not listening."
After Vega refused to sign the statement, she called her lawyer. She also called Beth Forwalder, in Sprint's legal department, and told her that Bass and Procter were demeaning and intimidating and unprofessional in their interview session. She told Forwalder that she felt uncomfortable during the interview. Vega also provided Corporate Security a detailed statement.
The printed portion of the statement which Corporate Security prepared purports to memorialize (among other things) the following exchange between Vega and Corporate Security:
I have been asked if I ever purchased a briefcase from the Coach Store on 2-22-01, which was placed on the Express Buy card. I first advised, this briefcase was purchased for Employee Recognition and if anyone said it was for me they were lying. This was not true and I am sorry that I did not tell you the truth the first time you asked. This briefcase was purchased for me.
Ex. J. to Defendant's Memorandum (Doc. #100) at 2.
Decision To Terminate
On March 6, 2003, Corporate Security (Bass and Procter) met with Miller, Forwalder and Mike Brill of HR. Bass and Procter described the investigation and presented their findings. During the meeting, Miller had before him the signed statements of Morgan and Oglesby, as well as the statement that Vega had refused to sign. Miller testified that Bass and Procter stated that they knew that Vega had not been truthful (1) during her interview and (2) when she misrepresented the reasons for purchasing the briefcase by writing "employee incentive." Miller testified that he took Corporate Security "at their word" as to how the expense reports were filed and how Vega had allegedly made attempts to provide inappropriate expense justification. Miller stated that Corporate Security told him that the expense report for the briefcase had originally said "employee incentive" but was changed to "due to medical issues for director" after Morgan caught the description. He also stated that if he had known that the envelope originally stated "medical reasons" it would not have changed his decision. He based his decision on testimony by Morgan and the fact that Corporate Security had checked it out. Miller testified that based on the statements of Morgan and Oglesby, he concluded that Vega had falsified company records. Oglesby's statement did not mention the briefcase, however, and Morgan's statement did not explicitly state that Vega had falsified company records. Miller testified that he understood that Vega had used the Express Buy account to purchase the cell phone.
Miller did not see the Express Buy envelope for the briefcase until his deposition. He does not remember whether Corporate Security told him that it had a document which said that the briefcase had been purchased for medical issues.
Miller also concluded that Vega had violated work order procedures and policy when she directed Morgan to sign work orders with a signature as close to hers as possible. He believed that this violation was not a mere technicality, but a serious integrity breach that in and of itself would have required written and final warnings. He testified that Vega should not have had someone sign on her behalf or copy her signature so as to misrepresent who was signing. He found that Vega had used her assistants to help her misuse the Express Buy account and tried to influence them and then falsely report what happened to Corporate Security. Ex. B to Defendant's Memorandum, (Doc. #100), Miller Depo. at 140. Miller testified that he believed that by using funds inappropriately, Vega was stealing from Sprint.
Before he decided to terminate Vega's employment, Miller met with Mike Brill of HR. Brill testified that he did not personally investigate the allegation of misconduct, although he has done so as to other Sprint employees. He did not independently assess Morgan's credibility or look at any other statements. Based on information provided by Corporate Security, he concluded that Vega had lied. He also concluded that Vega had failed to cooperate with Corporate Security by being dishonest during her interview. Although he has asked other employees to respond to allegations, Brill did not ask Vega to do so. Until the Corporate Security investigation, he was not aware of any pattern of dishonesty by Vega.
At their meeting, Brill told Miller that it was Miller's decision whether to terminate Vega's employment. Brill said that the options ranged from written warning to termination. Brill described situations involving Sprint executives who had inappropriately used company funds, misrepresented actions to the company and falsified company records. Brill told Miller that in every one of those situations, Sprint had terminated the employee. Brill recommended termination.
Brill did not provide a time frame for the comparable situations, and did not tell Miller the titles or job responsibilities of the employees.
After consulting with Brill, Miller stated that he saw a pattern of behavior and action that he felt was serious enough to warrant termination. Miller based his belief that Vega had engaged in this pattern of behavior on information from Corporate Security, and he believed that Corporate Security had done a thorough investigation.
Before deciding to terminate Vega, Miller saw the following documents: Wright's memo to Vega of February 4, 2003; Morgan's written statement of February 11, 2003; Oglesby's written statement of February 17, 2003; and Bass' notes of his interview of Vega (which plaintiff refused to sign but which defendant characterizes as her "statement"). Miller accepted as true the information in Bass' notes. He did not talk to Vega about the allegations and did not see the statement which Vega had given Corporate Security after her interview. According to Miller, the information from Corporate Security revealed that Vega had (1) submitted a false expense report for a $600 Coach briefcase, (2) submitted her son's PCS phone bill on her expense account, (3) inappropriately used the Express Buy card, and (4) provided false information concerning her misconduct to both IT Finance and Corporate Security. Miller concluded that Vega had exercised extremely bad judgment and flat out lied.
Miller did not review the Sprint Standards of Conduct before deciding to terminate Vega's employment. Further, he did not know whether Vega had received approval to purchase the briefcase. If Corporate Security had told him that she had approval, he would have reconsidered whether to terminate her employment.
Miller testified that he met with Batt, a Sprint vice president, before terminating Vega's employment. Miller informed Batt of the events, the conclusion and the decision. Batt told him that the decision was appropriate. During the weekend of March 8-9, 2003, Miller continued to consider whether to terminate Vega' employment. He reached his final decision that weekend.
On March 10, 2003, Miller and Brill met with Vega and Miller terminated Vega's employment. He did not ask Vega for her version of what had happened because he believed that Corporate Security had already done that. At the end of the meeting, however, Miller asked Vega if she had anything to say and she said "no."
After consulting with the director team, Miller decided not to refill Vega's position. He added her job responsibilities to the existing responsibilities of director Mike Carey. Vega believed that Miller replaced her with Carey, but she did not know whether or not Carey took over all of her job responsibilities.
Vega contends that Miller terminated her employment because she is a woman.She believed that Miller did not allow her to defend herself and relied only on information from Bass and Procter. She testified that Miller did not support her in her position as Rodeo project director and excluded her from important meetings. Vega also testified that Miller selected her for the Rodeo project to set her up to fail. Vega notes that in November of 2002, Batt sent her an e-mail about the Rodeo project, stating "I look to you as the principal Director for the overall program" and "I look to you to provide the leadership, creativity and organization to get this project under control." Vega testified that she felt that the e-mail was "the onset, that I was a woman, and I was not one of Jerry's boys, and I was targeted and being set up." Ex. A to Plaintiff's Memorandum In Opposition To Motion For Summary Judgment (Doc. #107) filed August 20, 2004, Vega Depo. at 169. Vega stated that:
Upon taking on this enormous task, the program's budget was further reduced by Mike Miller. I was not allowed to keep contractors to get the job done. I was told to fix this thing, which had been broken from sometime, keeping in mind that a previous director of male, white stature had it and there was no reprimand on his account, or badgering and pressure.Id. at 161. Vega's belief that Miller discriminated against her is also based on comments by third-party vendors of Sprint. Steve Wagner, a vendor representative present at several Rodeo project meetings, told Vega that Miller did not support her because "[y]ou're a woman" and "the next logical target." Wagner never told Vega that his belief was based on statements by Miller or anyone else at Sprint. Another vendor, Igor Ivensky, expressed concern to Vega about Miller's lack of support for her on the Rodeo conversion project. Vega does not recall Ivensky ever telling her that Miller said anything to him about Vega's gender, race or age. Oded Ravid, a vendor's vice president, expressed to Vega concern that Miller was not supporting her on the Rodeo conversion project. Tedd Faddick, of another vendor, told Vega that "with Cloene gone, you are the next target, and you are female, and it's easier to get rid of a female in a big corporation like Sprint." Faddick also told Vega that "Jerry [Batt] and the boys were not going to be the fall guys on this."
During her deposition, Vega was not asked whether Ravid told her that he believed she was being blamed for the failure of the project because of her age, race or sex.
Vega overheard male directors talking about playing cards at Batt's house. Batt never invited plaintiff to play cards, or to play golf with vendors.
Vega testified that Corporate Security was out to "get" her, that it is "out to get" the people it investigates, and it selectively included information in her case report.
Misconduct By Batt
Since April of 2002, Sprint has terminated four executive employees in the IT Department as a result of misconduct and/or violation of Sprint's rules: Vega, Brian Brinkley, William McDonald and Syed Saghir. Sprint fired Brinkley and McDonald after Corporate Security investigated claims of sexual harassment and determined that both men were sexually involved with subordinate employees. Brinkley had asked a program manager to find out whether Batt had received a paycheck from a consulting firm (Foxfire) after Batt started working for Sprint. Plaintiff suggests that Batt may have terminated Brinkley because of Brinkley's inquiry, rather than because of sexual misconduct. Sprint fired Saghir after an investigation revealed that he had removed several computers from the Sprint campus and downloaded pornography on Sprint computers.
Between May of 2002 and January of 2003, Sprint received seven ethics complaints against Batt. On May 1, 2002, someone sent an anonymous e-mail stating: "You need to investigate Batt. He is unethical, he is `dirty' and someone maybe a professional PI needs to look into his business practices. . . . I know that he has been bought by vendors." Corporate Security investigated the complaint by examining e-mail, going to the office of a vendor (Genesis 10) in Overland Park, Kansas, checking the records of the Kansas Secretary of State, running a multi-state check of companies owned by the president of Genesis 10, checking supplier disbursement records and meeting with directors and manager of Genesis 10. Sprint closed the complaint as unsubstantiated after Corporate Security met with Forwalder and HR.
On July 29, 2002, someone called the Ethics Hotline and complained that Batt had hired several contractors and employees who had worked for Foxfire, Batt's former consulting company. The complainant alleged that Batt had fired long-term Sprint employees to make room for Foxfire consultants, even though the Sprint employees were better qualified and less costly than the consultants. HR investigated the complaint and determined that it was unsubstantiated.
On November 5, 2002, someone alleged that Batt had accepted kickbacks from Business Edge, a Sprint vendor. Corporate Security investigated the complaint, and reviewed all airfare charges and expense reports for 2002; compared airfare charges and expense reports against Batt's calendar entries for 2002; examined contacts with Business Edge in calendar entries and expense reports; reviewed e-mail with Business Edge; and compared all CDR records and numbers belonging to Business Edge. After Forwalder met with Corporate Security, Sprint closed the investigation as unsubstantiated.
On November 12, 2002, someone anonymously complained that Batt was hiring friends and former investors from Foxfire, and had laid off Sprint employees to make room for Business Edge contractors. On November 18, 2002, another anonymous complainant alleged that Batt was "hiring associates from this failed consulting venture Foxfire as payback for their financial support and loyalty — allowing contractors to make financial decisions for Sprint and improper staffing decisions." The complainant alleged that Batt had hired consultant Ann Irvin, a "key investment partner" from Foxfire, to whom he owed "plenty," that Sprint did not limit the number of hours which Irvin billed and that as of November 18, 2002, she had billed Sprint over $300,000. On December 1, 2002, Noel Strong complained that Batt's behavior with Irvin was inappropriate. On January 1, 2003, Mary Stadler complained that Batt had a prior business relationship with Business Edge and that the cost of Business Edge contractors was much higher than comparable contractors with no apparent increase in quality or value.
Corporate Security investigated the complaints of November 18 and December 1, 2002, and January 1, 2003. Among other people, Corporate Security interviewed Donna Morrison, Stadler and Miles. Morrison told Corporate Security that Business Edge took over the Rodeo project because Rod Mack, a senior sales representative of Business Edge, had previously worked for Batt at ATT and had been a partner in Batt's consulting firm Foxfire. The investigation revealed that Miller had worked with Batt at ATT, and that Batt hired Miller at Sprint. Stadler stated that Batt required all consultants in his group to be hired through Business Edge. The Business Edge consultants charged at least twice as much as consultants from other vendors. When Batt ran a campaign to reduce consultant fees, he did not discuss Business Edge fees, in spite of their significantly higher rate.
Among the IT organization, the consultants were commonly known as Friends of Jerry ("FOJ").
Miles told Corporate Security that when he took over the Rodeo project, a third-party vendor — AMDOCS — requested "a piece of the conversion project," and that AMDOCS was assigned to reevaluate a portion of the project at a cost of $5.2 million. A former business associate of Batt operated AMDOCS.
Miles testified that Batt instructed him to use at least one consultant from Business Edge to evaluate a Convergys proposal.
Vega asserts that the investigations into Batt's behavior raised more questions than they resolved. She asserts that Sprint exonerated Batt in spite of the apparent conflict of interest he created between Sprint and his former business associations, Foxfire and Business Edge.
Analysis
Plaintiff asserts that in terminating her employment, defendant discriminated on account of gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., and the Kansas Act Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq. The Court applies the same analysis to claims under Title VII and the KAAD. See Aramburu v. Boeing Co., 112 F.3d 1398, 1403 n. 3. (10th Cir. 1997);Cowan v. Unified Sch. Dist. 501, 316 F. Supp.2d 1061, 1067 n. 1 (D. Kan. 2004); Lewis v. Std. Motor Prods., Inc., 203 F. Supp.2d 1228, 1233 n. 13 (D. Kan. 2003). Accordingly, the Court's analysis of plaintiff's disparate treatment claim applies equally to plaintiff's claim under Title VII and the KAAD.
Defendant contends that it is entitled to summary judgment because plaintiff cannot establish a prima facie case of gender discrimination; that it had a legitimate nondiscriminatory reason for terminating plaintiff's employment; and that plaintiff has no evidence that its stated reason for termination is a pretext for discrimination.
The Court uses the familiar McDonnell Douglas framework to analyze plaintiff's discrimination claims. Under McDonnell Douglas, plaintiff must carry the initial burden under the statute of establishing a prima facie case of gender discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once plaintiff has established a prima facie case, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for its employment action. See id. If defendant makes this showing, plaintiff must then show that defendant's justification is pretextual. See id. at 804.
Generally, to establish a prima facie case of gender discrimination in termination of employment a plaintiff must establish that (1) she belonged to a protected group; (2) she was doing satisfactory work; (3) defendant terminated her employment; and (4) the position from which plaintiff was discharged was filled or remained available. See, e.g., Amro v. Boeing Co., 232 F.3d 790, 797 (10th Cir. 2000). The test is flexible, however, and plaintiff may establish a prima facie case with evidence that the termination occurred under circumstances that give rise to an inference of discrimination. See id. For purposes of summary judgment, defendant concedes that plaintiff can meet the first three elements. Defendant argues, however, that plaintiff has not produced evidence that it filled her position or that the position remained open. Plaintiff points to evidence that defendant gave her duties to Mike Carey, a male, and argues that Sprint therefore replaced her with a male. Sprint points out that Carey did not fill plaintiff's position, but took on her job responsibilities in addition to his own.
The test whether a position was eliminated is not whether the responsibilities are still being performed, but whether they still constitute a single, distinct position. See Furr v. Seagate, 82 F.3d 980, 988 (10th Cir. 1996); see also Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1165 (8th Cir. 1985) (no prima facie case of age discrimination in termination based solely on fact defendant combined plaintiff's job duties with duties of position held by younger employee). Sprint has produced uncontroverted evidence that it combined plaintiff's duties with those of an existing employee. Therefore plaintiff has not shown that Sprint replaced her. Such a showing, however, is not required. See Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1227-28 (10th Cir. 2000); Creason v. Seaboard Corp., 263 F. Supp.2d 1297, 1306-07 (D. Kan. 2003) (plaintiff in RIF need only produce evidence from which factfinder could reasonably conclude that employer intended to discriminate).
Plaintiff argues that she can establish the fourth prong of her prima facie case with evidence that Sprint treated her less favorably than similarly-situated employees outside the protected class. Specifically, she contends that Sprint's investigation of ethical violations by Batt was more thorough than its investigation of Wright's allegations against her, and that Batt's alleged violations were more serious than the allegations which resulted in her termination. Defendant does not separately address plaintiff's argument on this point; defendant stands on the assertion that the Tenth Circuit requires plaintiff to show that her job was not eliminated after her discharge, citingMunoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1165-66 n. 3 (10th Cir. 2000). As noted above, however, although plaintiff may show the fourth prong by evidence that her job was not eliminated, the Tenth Circuit allows plaintiff to establish a prima facie case with other evidence which allows an inference of discrimination. See Kendrick, 220 F.3d at 1227 n. 6; Creason, 263 F. Supp.2d at 1306-07. Defendant briefly argues that to the extent plaintiff relies upon evidence of less favorable treatment than others outside the protected class, she has not set forth a prima facie case. In so arguing, defendant basically argues that plaintiff has produced no evidence of pretext. The hurdle for plaintiff to set forth a prima facie case is not high, however, and the Court will presume for purposes of this analysis that she has established a prima facie case. The burden therefore shifts to defendant to set forth a legitimate, nondiscriminatory reason for plaintiff's termination.
Defendant asserts that Miller terminated plaintiff's employment because Corporate Security reported that she had submitted a false expense report for a briefcase, submitted her son's phone bill on her expense account, inappropriately used an expense account card, and provided false information during an investigation by IT Finance and Corporate Security. Miller testified that based on the Corporate Security report, he terminated plaintiff's employment because she used bad judgment and lied. If true, this would be a legitimate nondiscriminatory reason to terminate plaintiff's employment. See, e.g., Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261 (10th Cir. 2001) (courts should not second guess employer's business judgment).
Because defendant has articulated a legitimate reason for terminating plaintiff's employment, the burden shifts to plaintiff to present evidence that "the proferred reason was not the true reason for the employment decision." Aramburu, 112 F.3d at 1404; see Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994) (plaintiff may show pretext by establishing either that discriminatory reason more likely motivated defendant or that defendant's explanations are unworthy of credence).
Evidence of pretext may take a variety of forms. Kendrick, 220 F.3d at 1230. A plaintiff typically makes a showing of pretext in one of three ways: (1) evidence that defendant's stated reason for the adverse employment action was false; (2) evidence that defendant acted contrary to written company policy prescribing the action to be taken under the circumstances; or (3) evidence that defendant acted contrary to unwritten policy or company practice when making the adverse employment decision.Id. A plaintiff who wishes to show that defendant acted contrary to unwritten policy or company practice often does so by providing evidence that defendant treated her differently from similarly-situated employees who violated work rules of comparable seriousness. See Aramburu, 112 F.3d at 1404.
Plaintiff presents primarily two arguments to support her claim that Sprint's justification for her discharge is pretextual. Plaintiff first argues that the stated reasons are false — that she did not submit a false expense report for a briefcase, submit her son's phone bill on her expense account, inappropriately use an expense account card or provide false information during the investigation. In the alternative, plaintiff argues that defendant did not discharge Batt — a similarly-situated male employee — for more egregious misconduct.
As evidence of pretext, plaintiff also notes that third-party vendors suggested to her that Miller did not support her and her belief that Miller chose her for the Rodeo Project to set her up to fail. This evidence, however, does not create an inference of an intent to discriminate on account of gender.
1. False Justification for Termination
Plaintiff presented evidence (her testimony and affidavit) that she did not (a) submit a false expense report for a briefcase, (b) submit her son's phone bill on her expense account, (c)inappropriately use an expense account card or (d) provide false information during the investigation. Plaintiff argues that this evidence demonstrates that the stated reason for termination is unworthy of belief.
For purposes of this motion, the Court accepts as true plaintiff's statement that she did not submit a false expense report for a briefcase, submit her son's phone bill on her expense account, inappropriately use an expense account card or provide false information during an investigation. A challenge of pretext, however, requires the Court to view the facts as they appeared to the person who made the termination decision. See Kendrick, 220 F.3d at 231; McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (no pretext where defendant discharged plaintiff after investigating allegations of sexual misconduct and believed them to be true, even though plaintiff presented evidence that allegations may have been false). Miller testified that he decided to terminate plaintiff because he believed that she had submitted a false expense report, submitted her son's phone bill on her expense account, inappropriately used an expense account card and provided false information during the investigation. Plaintiff does not directly answer this evidence, but asserts that even if Miller believed the allegations, he was negligent in relying on an incomplete investigation.
Plaintiff has presented no evidence that Miller did not have a good faith belief, based on the Corporate Security investigation and report, that she had committed the acts in question. When Miller told plaintiff of his decision to terminate her employment, he asked if she had anything to say. Plaintiff refused an opportunity to respond. See Kendrick, 220 F.3d at 1231 (employer asked plaintiff to give version of events and he declined to do so; no evidence that investigation was sham or that discriminatory motives influenced decision-makers). Further, negligence alone does not establish intent to discriminate. See McKnight, 149 F.3d at 1129 (poor judgment not proof of pretext). Therefore, even if Miller negligently and falsely concluded that plaintiff had violated work rules, the stated reason for his decision was not a pretext for discrimination.
2. Treatment of Similarly-Situated Employees
As explained above, plaintiff may also show pretext with evidence that defendant treated her differently than similarly-situated, nonprotected employees who violated work rules of comparable seriousness. An employee is similarly situated if the employee deals with the same supervisor and is subject to the "same standards governing performance evaluation and discipline." Aramburu, 112 F.3d at 1404 (internal quotations and citation omitted). In determining whether plaintiff and the intended comparable employees are similarly situated, a court should compare the relevant employment circumstances, such as work history and company policies. Id. In this regard, the Tenth Circuit has stated:
Not every difference in treatment, of course, will establish a discriminatory intent. Title VII does not make unexplained differences in treatment per se illegal nor does it make inconsistent or irrational employment practices illegal. It prohibits only intentional discrimination based upon an employee's protected class characteristics. Human relationships are inherently complex. Large employers must deal with a multitude of employment decisions, involving different employees, different supervisors, different time periods, and an incredible array of facts that will inevitably differ even among seemingly similar situations. . . . What the law does require is that an employer not discriminate against an employee on the basis of the employee's protected class characteristics.Kendrick at 1232 (further quotation omitted). Differences in treatment that are trivial or accidental or explained by a nondiscriminatory motive will not sustain a claim of pretext.See id. at 1320.
As noted, plaintiff argues that she has established pretext by evidence that Sprint treated her less favorably than employees outside the protected class. Specifically, plaintiff contends that (1) Sprint investigated allegations against Batt more thoroughly than it investigated Wright's allegations against her, and that a more thorough investigation would have exonerated her; and (2) Sprint fired her but did not fire Batt, even though his violations were more serious. Defendant responds that the allegations were different, different investigations were required, and that plaintiff has not produced evidence of less favorable treatment than other similarly situated employees.
Plaintiff also claims that another employee (Godlewski) admitted to sexual involvement with a subordinate but only received a warning. This is so different from the alleged wrongful conduct by plaintiff that it is not a basis for comparison. See Aramburu, 112 F.3d at 1404.
Defendant also points out that Miller, who hired plaintiff to lead the Rodeo Conversion project, was the same person who fired plaintiff less than three months later. When the same person hires and fires an employee within a relatively short period of time, it raises a strong inference that discrimination is not a motivating factor. See Herr v. Airborne Freight Corp., 130 F.3d 359, 363 (8th Cir. 1997) (unlikely that same supervisor would hire member of protected class only to discharge that employee within relatively short time). This is only an inference, however, and by itself does not entitle defendant to summary judgment.
As to the thoroughness of the Batt investigations, plaintiff notes that Corporate Security checked Secretary of State records, supplier disbursement records and Batt's expense reports for an entire year (2002) and compared them with Batt's calendar and Business Edge calenders and expense reports. It also reviewed Batt's e-mail correspondence with Business Edge and interviewed employees who worked with him. Plaintiff contends that Corporate Security handled her investigation differently in the following ways: Bass took inaccurate notes which she refused to sign; although she gave Corporate Security a detailed statement, Corporate Security did not pass on that statement to Miller; and Corporate Security did not independently determine whether plaintiff had received approval for the briefcase or phone purchases. Further, the Corporate Security statement about Morgan's interview did not include her belief that plaintiff had done nothing wrong, or the fact that Hampton did not recall discussing the briefcase with plaintiff. In sum, plaintiff argues that Corporate Security conducted an incomplete and sloppy investigation of her alleged improprieties, while it meticulously investigated the allegations against Batt. Plaintiff also points out that HR conducted independent investigations of Batt, but not her.
In addressing this argument, the Court first notes that plaintiff has presented no evidence that she and Batt were similarly situated or subject to the same standards. Batt supervised Miller, and Miller supervised plaintiff. Although Batt's supervisor is not clear, Batt and plaintiff did not have the same supervisor. Furthermore, although plaintiff has not identified who made the decisions concerning each of the investigations of Batt, it clearly was not Miller. Plaintiff simply has not shown that she was similarly situated to Batt.
In addition, the allegations against plaintiff and against Batt were so different as to defy comparison: Batt was accused of wasting hundreds of thousands of dollars by giving consulting contracts to friends and business associates while plaintiff was accused of misrepresenting her expenses to the tune of perhaps a thousand dollars. The difference in the nature of the investigations does not establish pretext. The record contains no evidence that the thoroughness of either investigation was motivated by gender. Further, the investigation of plaintiff does not rise to the level of a "disturbing" procedural irregularity.See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1219-20 (10th Cir. 2002).
In summary, as a matter of law, the situations of Batt and plaintiff are distinguishable. They were not subject to the same work standards and did not have the same supervisor. Sprint found that the allegations against Batt were unfounded and unsubstantiated, while Miller concluded that plaintiff had violated work order procedures and policies, used funds inappropriately and was not honest during her interview with Corporate Security. On the whole, plaintiff has not shown a genuine issue of material fact whether defendant's stated nondiscriminatory reasons for termination was a pretext for discrimination. Defendant is entitled to summary judgment on plaintiff's claims that defendant discriminated against her because of gender. IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment (Doc. #99) filed August 6, 2004 be and hereby is SUSTAINED.