Pierri v. Cingular Wireless, LLC

• Citation: 397 F.Supp.2d 1364
• Decision Date: 18 October 2005
• Docket Number: No. Civ.A. 1:04-CV-2134-TWT.,Civ.A. 1:04-CV-2134-TWT.
• Parties: Claudette PIERRI, Plaintiff, v. CINGULAR WIRELESS, LLC, a Delaware limited liability company, Defendant.
• Court: U.S. District Court — Northern District of Georgia

397 F.Supp.2d 1364

Claudette PIERRI, Plaintiff, v. CINGULAR WIRELESS, LLC, a Delaware limited liability company, Defendant.

No. Civ.A. 1:04-CV-2134-TWT.

United States District Court, N.D. Georgia, Atlanta Division.

October 18, 2005.

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Stephen M. Katz, Law Offices of Stephen M. Katz, Atlanta, GA, for Plaintiff.

David Richard Kresser, E. Jewelle Johnson, Fisher & Phillips, Atlanta, GA, for Defendant.

ORDER AND OPINION

THRASH, District Judge.

This is an employment discrimination action. It is before the Court on the Report and Recommendation [Doc. 25] of the Magistrate Judge recommending granting the Defendant's Motion for Summary Judgment [Doc. 21]. After careful review, the Court approves and adopts the Report and Recommendation as the judgment of the Court. The Defendant's Motion for Summary Judgment [Doc. 21] is GRANTED.

JUDGMENT

This action having come before the court, Honorable Thomas W. Thrash, Jr., United States District Judge, for consideration of the Report and Recommendation of the Magistrate Judge recommending granting Defendant's Motion for Summary Judgment, and the court having granted said motion, it is

Ordered and Adjudged that judgment is entered in favor of the Defendant against the Plaintiff, and the Defendant recover from Plaintiff the costs of this action.

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

WALKER, United States Magistrate Judge.

This case is presently before the Court on Defendant's Motion for Summary Judgment, filed on April 8, 2005. Docket Entry [21]. Plaintiff has not filed a response, and, therefore, the motion for summary judgment is deemed unopposed. See Local Rule 7.1B, N.D. Ga. For the reasons set forth more fully below, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff filed the instant lawsuit on July 22, 2004, alleging that Defendant discriminated against her on the basis of her gender with respect to her pay, subjected her to gender harassment by her supervisor, and ultimately terminated her employment, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (See Compl., Docket Entry [1]). Plaintiff also alleges state law claims of intentional infliction of emotional distress, invasion of privacy, and negligent retention. (See id.).

Defendant filed the instant Motion for Summary Judgment contending that Plaintiff's Title VII gender pay discrimination claims fail as a matter of law because it is untimely. Alternatively, Defendant argues that Plaintiff cannot make out a prima facie case of gender discrimination because she cannot show that she was paid less than similarly-situated male employees who performed the same job, nor is there evidence of any evidence of pretext. Defendant also contends that Plaintiff's Title VII claim for wrongful termination fails as a matter of law because Plaintiff cannot show that any similarly-situated male employees had nearly identical violations of the corporate credit card and expense reporting policies, as did Plaintiff, but were not terminated. Likewise, Plaintiff cannot show pretext because Plaintiff admitted that she failed to timely submit her expense reports and, although she alleges that her supervisor, Richard Murray, harbored gender animus toward her, Human Resources, not Mr. Murray, was responsible for the decision to terminate Plaintiff's employment. Defendant further contends that Plaintiff's gender harassment claim fails as a matter of law because (1) she cannot show that Mr. Murray committed some of the alleged conduct; (2) she cannot show that the alleged harassment was gender-related and thus Plaintiff cannot show that she was harassed because of her sex; and (3) Plaintiff cannot show that the alleged harassment was sufficiently severe or pervasive to create an objectively hostile work environment that affected any term, condition, or privilege of employment.

Defendant also contends that Plaintiff's state law claims fail as a matter of law. Specifically, Defendant contends that Plaintiff cannot establish her claim for intentional infliction of emotional distress because she cannot show that the alleged conduct was sufficiently extreme or outrageous, or that she suffered severe emotional distress. Defendant also contends that Plaintiff cannot establish her invasion of privacy claim because she cannot show any facts supporting a claim for an unreasonable intrusion, which requires a physical intrusion analogous to a trespass, or that there was any unprivileged public disclosure of embarrassing facts about Plaintiff. Lastly, Defendant contends that Plaintiff cannot establish her claim for negligent retention of Mr. Murray because Plaintiff has no evidence that Defendant received complaints that Mr. Murray was harassing other female employees so that Defendant would have been on notice of any gender harassment.

I. STATEMENT OF FACTS

Plaintiff began working as an agent manager for SBC Communications, Inc. ("SBC") in 1989. (Pl.Dep. p. 18). In 1991, Plaintiff was promoted to general sales manager and handled the national retail division in Chicago, Illinois until 1998. (Pl.Dep. pp. 19-20). In 1998, Plaintiff was promoted to director and relocated to SBC's headquarters in Dallas, Texas. (Pl.Dep. p. 20). In Plaintiff's position in Dallas, she received a salary as well as quarterly commissions and an annual bonus. (Pl.Dep. p. 22). Plaintiff's base salary was $55,000 and her total annual compensation was $133,000. (Pl.Dep. p. 22).

Defendant Cingular is a joint venture formed between SBC Communications, Inc. ("SBC") and BellSouth Corporation in late 2000. (Defendants' Statement of Material Facts as to Which Cingular Contends there is no Genuine Issue to Be Tried (hereinafter "DSMF") ¶ 1).¹ At all times relevant, Defendant maintained an Equal Employment Opportunity ("EEO") Policy that prohibited discrimination and harassment on the basis of gender. (DSMF ¶ 2; see Pl. Dep., Ex. 7). Defendant also maintained an anti-harassment policy and complaint procedure for reporting sexual and other types of harassment in the workplace. (DSMF ¶ 3; see Adams Decl. ¶ 4, Ex. 2). Plaintiff received a copy of Defendant's Code of Business Conduct, which contained an EEO Policy and harassment complaint procedure. (DSMF ¶ 4).

In December 2000, Plaintiff interviewed with James Flynn, Vice President of National Distribution for Cingular, for a position in Atlanta, Georgia as Director of Prepaid Distribution for the newly-formed Cingular. (DSMF ¶ 7). Plaintiff was offered the position, which she accepted, and began working for Cingular in Atlanta on January 1, 2001. (DSMF ¶ 8; Pl. Dep., Ex. 3; Murray Decl. ¶ 6). Plaintiff reported directly to Ric Murray, Executive Director for Wireless Operations. (DSMF ¶ 9).

At the time Plaintiff moved to Atlanta, the pay structure for personnel from SBC and BellSouth had not been integrated into a formal pay structure for Cingular employees. (DSMF ¶ 10). Unlike Plaintiff's position with SBC in Dallas, she was not paid on a commissioned basis in her new Cingular position in Atlanta. (DSMF ¶ 11). In August 2001, Plaintiff was informed that her base salary would be raised $33,000, from $57,000 to $90,000, and that she would eligible to receive up to a 17% bonus at the end of the year. (DSMF ¶ 12; Pl. Dep., Ex. 2). Plaintiff's compensation package with Cingular eventually was made retroactive to January 1, 2001, the effective date of her promotion. (DSMF ¶ 14; Pl. Dep., Exs. 2, 3). Plaintiff also was eligible for special ad hoc bonuses in 2001, 2002 and 2003, of $15,000, $10,000 and $5,000 respectively. (DSMF ¶ 13). In March 2002, Mr. Murray gave Plaintiff an outstanding performance evaluation that resulted in another pay increase for Plaintiff. (DSMF ¶ 15). Plaintiff also received a pay increase of about three to four percent in March 2003 as a result of a favorable performance evaluation from Mr. Murray. (DSMF ¶ 16).

In the fall 2002, Defendant began using a web-based expense reporting and reimbursement system called Concur. (DSMF ¶ 17). Employees were required to request reimbursement of all expenses incurred on behalf of Defendant through Concur. Out-of-pocket expenses would be reimbursed directly to the employee and corporate credit card charges would be paid directly to the credit card company. (DSMF ¶ 18; Adams Decl. ¶ 9, Exs. 4, 5). In order for employees to get reimbursed and clear the Concur charges, the employees were required to timely submit accurate expense reports, complete appropriate reimbursement documentation and submit receipts. (DSMF ¶ 18; Adams Decl. ¶ 9, Exs. 4, 5). Monthly credit card statements were sent directly from the credit card company to the employees; if all credit card charges were business-related and expense reports were timely submitted to Concur, these charges would automatically be paid and employees were not required to make any payments to the credit card company. (DSMF ¶ 19; Adams Decl. ¶ 9, Exs. 4, 5). Employees with a delinquent balance on their corporate credit card could be subjected to discipline: accounts that were more than sixty days delinquent were suspended by the credit card company, and delinquent balances over ninety days past due could result in Defendant terminating that employee. (DSMF ¶ 20; Adams Decl. ¶¶ 9-10, Exs. 4, 5).

Because Plaintiff traveled for business purposes, she had a corporate credit card for business expenses and was familiar with the policies governing expense reports and Defendant's credit card usage. (DSMF ¶ 21). On March 14, 2003, Concur generated a statement showing that Plaintiff had a number of outstanding charges, for which no paperwork was submitted in order to clear the charges. (DSMF ¶ 22). According to Plaintiff, however, she asked Mr. Murray's administrative assistant, Theresa Wicker, to submit Plainti...