Spiess v. Xerox Corporation

Filing 33

DECISION AND ORDER granting defendant Xerox's motion for summary judgment and dismissing the plaintiff's complaint with prejudice. Signed by Hon. Michael A. Telesca on 7/21/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
CHRISTOPHER SPIESS,
Plaintiff,

08-CV-6211
DECISION
and ORDER

v.
XEROX CORPORATION,
Defendant.
________________________________________
INTRODUCTION
Plaintiff,
action

pursuant

Christopher
to

the

Spiess

Age

(“Plaintiff”),

Discrimination

in

brings

Employment

this
Act

(“ADEA”), 29 U.S.C. § 621 et. seq.; Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000(e); and the New York
State Human Rights Law (“NYSHRL”), Executive Law § 296, et seq.,
against

Defendant

Xerox

Corporation

(“Defendant”

alleging discrimination based upon his age and sex.
¶ 1; see also ¶¶ 32-55).

or

“Xerox”),

(Dkt. No. 1

Specifically, Plaintiff alleges that

Xerox terminated his employment with the company for discriminatory
reasons related to his age and sex.
Defendant

Xerox

Corporation

See id.
moves

for

summary

judgment

dismissing Plaintiff’s complaint pursuant to Rule 56(e) of the
Federal Rules of Civil Procedure (“Rule 56") on the grounds that it
terminated

Plaintiff’s

employment

for

legitimate,

non-

discriminatory reasons unrelated to his age or sex. (Dkt. No. 20-2
at 1).

Xerox argues that Plaintiff violated Xerox’s policies

prohibiting the use of Xerox information systems for the storing or
sending of any inappropriate e-mail messages, including pornography
and graphic violence.

Id.

Further, Xerox argues that Plaintiff

has

provided

no

evidence

that

supports

his

claim

that

his

termination was pretextual, or that its facially-neutral policy had
a disparate impact on older employees or males.

Id.

Plaintiff opposes Defendant’s motion and argues that there are
disputed issues of material fact which preclude granting summary
judgment.

(Dkt. No. 24-4 at 16).

For the reasons set forth below,

this Court finds that Plaintiff has not established a prima facie
case

of

summary

discrimination.
judgment

is

Accordingly,

granted,

and

Defendant’s

Plaintiff’s

motion

Complaint

for
is

dismissed.
BACKGROUND
Plaintiff began working for Xerox as an engineering technician
in 2000.

(Dkt. No. 1 ¶ 8, see also Dkt. No. 24-5 at 3).

2007, Xerox terminated Plaintiff from his employment.
¶

9).

During

those

seven

years,

Plaintiff

In April

(Dkt. No. 1

received

regular

promotions, concomitant increases in pay, and generally had a
positive performance record.

See id. at 9.

Plaintiff was terminated from Xerox after an investigation
revealed he had engaged in inappropriate e-mail usage that violated
Xerox’s Code of Ethics.

(Dkt. No. 24-3 at 9).

Xerox maintained a

well established Code of Conduct for its employees.
3; see generally Dkt. No. 20-5, Exh. A).

(Dkt. No. 20-

Xerox’s Code of Conduct

set forth its expectations regarding its employees’ behavior and
ethics and specifically stated that employees who violated these
ethical standards would be subject to disciplinary actions, up to
and including termination.

(Dkt. No. 20-5, Exh. A at 3).
-Page 2-

Xerox’s Code of Conduct also contained specific provisions
regarding the use of its Information Technology (“IT”) Systems,
including the use of its computers.
No. 20-5, Exh. A at 6-7).

(Dkt. No. 24-3 at 3; Dkt.

These provisions, in relevant part,

prohibited, inter alia, excessive personal use and the accessing of
“any form of pornography.”

See id.

Xerox had a number of

professional reasons for having such policies, including to ensure
that its computers and other IT systems were used to conduct Xerox
business and not for any illegal or unethical activities that could
subject the Company to embarrassment or legal consequences.

(Dkt.

No. 20-5, Exh. A at 7).
Xerox provided mandatory periodic training concerning its Code
of Conduct to all employees, including Plaintiff.
¶ 9; see also Dkt. No. 24-5 at 17).

(Dkt. No. 20-4

Further, employees had no

expectation of privacy with regard to their use of Xerox’s computer
equipment or its information systems.

Indeed, the Code expressly

denied privacy protection for any personal information stored on
Xerox equipment, and provided that Xerox would have unlimited
access to any information stored on its computers or servers.
(Dkt. No. 20-4, Exh. A at 12).
In

February

offensive

2007,

material

was

Xerox

launched

found

on

Xerox

an

investigation

Capital

after

Services,

employees’ computers in the Lewisville, Texas facility.1

LLC
The

investigation involved five Xerox employees, including Plaintiff.
1

At the time, Xerox Capital Services was an entity owned in
part by Xerox Corporation and in part by GE Capital Information
Technology Solutions, Inc.
-Page 3-

The type of inappropriate e-mails found included pornographic
photographs,

sexually

suggestive

online

depicting graphic, war-related violence.
No. 24-7, Exh. E-I).
were

investigated

content via e-mail.

videos,

and

movies

(See generally Dkt.

Plaintiff and the four other Xerox employees

for

sending

and

storing

this

inappropriate

(Dkt. No. 20-4 ¶ 12).

Xerox’s Corporate Security department led the investigation,
which

included

collaboration

with

Xerox’s

Human

Resource’s

department in conducting individual interviews with each of the
five employees under investigation.

Id. at 13.

As a result, all

five employees were found to have violated Xerox’s e-mail usage
policies.

Xerox terminated four of the employees, including

Plaintiff.

One of the employees, a female over the age of forty,

received a final warning.

The other employees were terminated

because they sent or stored a greater number of inappropriate emails that were especially offensive or pornographic.
No. 20-4 ¶ 17).

(Dkt.

The terminated employees were also found to have

sent the inappropriate e-mails to numerous Xerox employees, as well
to employees of Xerox vendors or others outside Xerox.

Id.

At the time of his termination, Plaintiff was a male over the
age of forty.2

(Dkt. No. 1 ¶ 4).

On May 13, 2008, Plaintiff filed

the instant action against Xerox citing age and sex discrimination.

2

Born on June 28, 1962, Plaintiff was forty-four at the time
of his termination. See Dkt. No. 24-5 at 2 for clarification of
Plaintiff’s birth year.
-Page 4-

DISCUSSION
I.

Standard of Review
Pursuant to Rule 56, a court may grant a motion for summary

judgment if the moving party demonstrates “that there is no genuine
issue as to any material fact.”

See Fed. R. Civ. P. 56(c).

Once

the movant has met this burden, the burden shifts to the non-movant
who must “come forward with evidence to allow a reasonable jury to
find in his favor” on each of the elements of his prima facie case.
See Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir.2001);
Celotex Corp. v. Catrett, 477 U.S. 317, 325-7 (1986).

The court

must draw all factual inferences, and view the factual assertions
in materials such as affidavits, exhibits, and depositions in the
light most favorable to the nonmoving party.

See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex Corp., 477
U.S. at 322.

However, a non-movant benefits from such factual

inferences “only if there is a ‘genuine’ dispute as to those
facts.”

See Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776

(2007).
The law is well established that “conclusory statements,
conjecture, or speculation” are insufficient to defeat a motion for
summary judgment.
(2d Cir. 1996).

See Kulak v. City of New York, 88 F.3d 63, 71
The non-movant cannot survive summary judgment

simply by proffering “some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986), or presenting evidence that “is merely colorable,
or is not significantly probative.”
-Page 5-

See Savino v. City of New

York, 331 F.3d 63, 71 (2d Cir. 2003) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citation omitted)).
Rather, he must “set out specific facts showing a genuine issue for
trial.”

See Fed. R. Civ. P. 56(e)(2); see also D'Amico v. City of

New York, 132 F.3d 145, 149 (2d Cir. 1998) (“non-moving party may
not rely on mere conclusory allegations nor speculation, but
instead must offer some hard evidence showing that its version of
... events is not wholly fanciful.”).
Claims of employment discrimination are analyzed under the
burden shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973), aff’d, 528 F.2d 1102 (1976), and
later refined in Texas Dep’t of Community Affairs v. Burdine, 450
U.S. 248 (1981) and St. Mary’s Honor Center v. Hicks, 509 U.S. 502
(1993).

Initially, the plaintiff bears the burden of proving a

prima facie case of discrimination.

If the plaintiff succeeds in

stating a prima facie case, the burden shifts to the defendant to
state a legitimate, non-discriminatory reason for the employment
action.

Should the employer meet that burden, the burden then

shifts back to the plaintiff to show that the reasons proffered by
the employer were not the true reasons for the adverse employment
action,

but

were

a

pretext

for

discrimination was the true reason.

discrimination,

and

that

See Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 252-3 (1981); St. Mary’s Honor
Center v. Hicks, 509 U.S. 502-6 (1993).
To establish a prima facie case of employment discrimination
under Title VII, a plaintiff must show (1) that he belonged to a
-Page 6-

protected class; (2) that he was qualified for the position he
held; (3) that he suffered an adverse employment action; and
(4) that the adverse employment action occurred under circumstances
giving rise to an inference of discrimination.

See Shumway v.

United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997).
Although the Second Circuit has stated that “the burden that must
be met by an employment discrimination plaintiff to survive a
summary judgment motion at the prima facie stage is de minimis,”
Tomka, 66 F.3d at 1308 (internal citations omitted), the Second
Circuit also has noted that “[a] jury cannot infer discrimination
from thin air.”

See Norton v. Sam’s Club, 145 F.3d 114 (2d Cir.

1998), cert. denied 525 U.S. 1001 (1998).
If a plaintiff establishes a prima facie case, the burden
shifts to the defendant to submit a legitimate, non-discriminatory
reason for the adverse employment action.

See James v. New York

Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000).

Once the defendant

satisfies this burden, the burden then returns to the plaintiff to
prove that the legitimate, non-discriminatory reason offered by the
defendant is a mere pretext for discrimination, and that “age was
the ‘but-for’ cause of the employer’s adverse action.”
FBL

Fin.

Servs.,

129

S.

Ct.

2343,

2351

Gross v.

(2009)(finding

that

plaintiffs asserting discrimination claims under the ADEA “must
prove by a preponderance of the evidence (which may be direct or
circumstantial), that age was the ‘but-for’ cause of the challenged

-Page 7-

employer decision.”)3; Szarzynski v. Roche Labs., Inc., 2010 U.S.
Dist. LEXIS at 17883.
A.

Plaintiff has Failed to Establish a Prima Facie Case of
Age Discrimination.

Plaintiff alleges claims of disparate treatment discrimination
in violation of the ADEA and NYSHRL4.
also Dkt. No. 24-4 at 15).

(Dkt. No 1 ¶¶ 36-49; see

Xerox moves to dismiss Plaintiff’s

disparate treatment age discrimination claim because Plaintiff
cannot establish a prima facie case for age discrimination or show
that

Xerox’s

legitimate,

non-discriminatory

termination were pre-textual.
Discrimination
preponderance

of

claims
the

reasons

for

his

(Dkt. No. 20-2 at 9).

under

evidence

the

ADEA

(which

“must
may

be

prove

by

direct

a
or

circumstantial), that age was the ‘but-for’ cause of the challenged
employer

decision.”

Gross,

129

S.

Ct.

at

2351.

As

such,

plaintiffs alleging ADEA discrimination claims cannot prove their
claims with evidence that age was merely a “motivating factor,” or

3

Claims under the NYSHRL are governed by the same standards
and will have the same outcome as claims analyzed under Title VII
and the ADEA. See 42 U.S.C. § 2000(e); 29 U.S.C. § 621 et. seq.;
Executive Law § 296, et seq.; see also Smith v. Xerox Corp., 196
F.3d 358, 363 (2d Cir. 1999)(disparate treatment and disparate
impact under ADA, ADEA, Title VII, and NYSHRL). As such, this
Court’s analysis of Plaintiff’s discrimination claims will apply
concurrently to both his federal and state law claims.
4

Although Plaintiff originally alleged claims of both
disparate treatment and disparate impact under the ADEA and
NYSHRL, Plaintiff has since conceded that his claims “do not fall
within the ambit of the disparate impact paradigm.” (Dkt. No. 244 at 15). As such, this Court dismisses Plaintiff’s disparate
impact claims, and no consideration will be given to those claims
in this Court’s discussion.
-Page 8-

anything less than a “but-for” cause in the adverse employment
decision.

See Gross, 129 S. Ct. at 2349.

Plaintiff has not alleged that Xerox ever made any negative
age-based remarks or that it took any actions suggestive of agebased discrimination throughout his employment. See generally Dkt.
No. 1. Age-based disparate treatment claims are analyzed under the
McDonnell Douglas burden-shifting analysis.
Corp., 411 U.S. at 802.

See McDonnell Douglas

Under this framework, as noted above,

plaintiffs bear the initial burden of establishing a prima facie
case of age discrimination.

Because Plaintiff Spiess is unable to

establish an inference of age bias, I find that he cannot establish
a prima facie case of age discrimination. Accordingly, Plaintiff’s
age discrimination claims are dismissed.
The fourth prong for making a prima facie case under the
burden-shifting

analysis

requires

Plaintiff

to

show

that

his

termination from Xerox occurred under circumstances giving rise to
an inference of age discrimination.

See id.

As noted above, it is

uncontested that Xerox maintains a Code of Conduct that contains
specific provisions regarding the use of its Information Technology
(“IT”) Systems, including terms for computer use.
¶ 3; see also Dkt. No. 20-3 ¶ 3).

(Dkt. No. 24-3

These provisions, in relevant

part, clearly state that employees who misuse Xerox’s information
systems may lose access to privileges, and may also be subject to
disciplinary action, including termination.

(Dkt. No. 24-3 ¶ 3;

see generally Dkt. No. 20-5, Exh. A at 6-7).

Additionally, Xerox

specifically prohibits chain e-mail or virus hoaxes; harassing or
-Page 9-

threatening communications; any form of pornography; and excessive
personal use.
several

Further, it is also uncontested that Xerox has

business-related

reasons

for

having

these

policies,

including to ensure that its computers and other IT systems are
used to conduct Xerox business and not for any illegal or unethical
activities.

(Dkt. No. 24-3 ¶ 6).

While the ADEA prohibits employers from enacting policies that
discriminate against employees based on age, 29 U.S.C. § 623(a)(1),
the ADEA does not prevent employers from terminating employees who
violate company policies prohibiting the use of its computer and
other systems for the receiving and sending of sexually explicit or
other offensive materials.

See e.g., Pacenza v. IBM Corp., 2009

U.S. Dist. LEXIS 29778 at *49-*51 (S.D.N.Y. April 2, 2009), aff’d,
2010 U.S. App. LEXIS 2170 (2d Cir. Feb. 2, 2010)(finding that
plaintiff violated a company policy that prohibited use of its
computers for pornography or other offensive materials when he
participated

in

a

sexually-oriented

chat

room

on

his

work

computer); Kirby v. SBC Servs., 391 F. Supp. 2d 445 (N.D. Texas
2005)(finding

that

the

receipt

and

distribution

of

sexually

explicit or otherwise offensive materials is sufficient grounds for
disciplinary

action

up

to

and

including

termination

from

employment).
Plaintiff admits to being one of five employees investigated
by Xerox after pornographic and other offensive materials were
found on the employees’ work computers.

(Dkt. No. 24-3 ¶ 13).

The

investigation was launched in February 2007 after the inappropriate
-Page 10-

material was found on the computers of Xerox Capital Services, LLC
employees in Lewisville, Texas.
In

his

opposition

Id. at 11.

papers,5

Plaintiff

contests

Xerox’s

statement regarding commencement of the investigation because he
finds issue with the investigation’s start-date.
¶ 11).
Reports

(Dkt. No. 24-3

He argues that, while “[a]ll of the Policy Investigation
for

the

five

employees

involved

are

dated

January

2007...the investigation did not take place until April or May
2007, when Plaintiff along with 3 other employees were terminated.”
Id.

However, Plaintiff’s argument fails to establish a material

dispute of fact. Plaintiff’s Policy Violation Investigation Report
is clearly dated April 20, 2007 and contains information regarding
Plaintiff’s April 17, 2007 interview.

(Dkt. No. 24-7, Exh. E-H).

The report was signed by the parties on April 23, 2007 and
April 24, 2007.

Id.

The January 25, 2007 date cited by Plaintiff

appears on the front page of the report; however, that date merely
refers

to

the

“Date

of

the

Incident”

5

that

prompted

the

This Court notes that, in addition to Plaintiff’s responses
to Defendant’s Local Rule 56.1 statement and a sixteen-page
memorandum in opposition to Defendant’s motion, Plaintiff submits
a fifteen-page “Counter Statement” of “material facts.”
Plaintiff submitted this additional statement “pursuant to” Local
Rule 56.1. Since Local Rule 56.1 does not provide for such a
filing in the absence of a cross motion for summary judgment, and
because Plaintiff’s counsel has already been given significant
instruction by this Court on the purposes of this Local Rule, see
e.g., Szarzynski v. Roche Labs., Inc., 2010 U.S. Dist. LEXIS
17883, at *6 (W.D.N.Y. Mar. 1, 2010)(Telesca, J.); Guarino v. St.
John Fisher College, 553 F. Supp. 2d 252, n.2 (W.D.N.Y. Apr. 16,
2008), aff’d, 321 Fed. Appx. 55 (2d Cir. 2009)(Siragusa, J.),
this Court will give no weight to Plaintiff’s “Counter
Statement,” and the Counter Statement will be disregarded. See
Pacenza v. IBM Corp., 363 Fed. Appx. 128, 130 (2d Cir. 2010).
-Page 11-

investigation and in no way discredits the investigation’s startdate or validity.

(Id., Exh. E).

As such, this Court finds no

dispute of fact regarding the start of the investigation, or the
fact that Plaintiff’s name and e-mail address were among those
found in the to/from header of some of the inappropriate e-mails
found during the course of the investigation.
Plaintiff

does

not

contest

that

he

(Dkt. No. 24-3 ¶ 8).
was

terminated

from

employment due to the February 2007 investigation into his e-mail
account.

Further, he admitted to sending or receiving some of the

offensive e-mails found in his account and simply denied specific
recollection of others.

(Dkt. No. 24-5 at 83-107).

Plaintiff attempts to create an issue of fact by contesting
Xerox’s ethics policies and employee expectations, claiming that
“while there was an ethics policy in place, no one followed it or
understood it, including high ranking Vice President John Lange who
also sent out a global non-work related e-mail.”

(Dkt. No. 24-3 at

2). Plaintiff fails to present a genuine dispute of fact, however,
for two reasons.

First, Plaintiff’s acknowledgment that Xerox had

an existing ethics policy is not negated by his claims that no one
followed or understood it.
policy

was

required

Plaintiff admitted that Xerox’s ethics

reading

and

that

periodically sign off that he read it.

he

was

required

to

(Dkt. No. 24-5 at 17).

Further, Plaintiff’s admission that he would sign off on the
required reading without actually reading it (Id. at 17-9) does not
negate the fact that Xerox had an ethics policy in place detailing
its expectations of its employees and that Plaintiff agreed to
-Page 12-

comply with Xerox’s policies each time he read the Code of Conduct,
signed, and acknowledged reading it.

(Dkt. No. 24-5 at 4-5).

Second, Plaintiff attempts to bolster his claims regarding
Xerox’s ethics policy by relying on unsupported, incomplete, and
misleading information obtained in an unrelated lawsuit. Plaintiff
cites “evidence” obtained by his attorney during discovery in
another unrelated lawsuit against Xerox.

That lawsuit, Glenwright

et al v. Xerox Corp., No. 07-cv-6325, was filed with this Court,
and Xerox’s motion for summary judgment is currently pending before
Judge Larimer.

(Dkt. No. 29-3 ¶ 2).

Many of the claims in

Plaintiff’s reply papers are cited improperly to depositions from
the Glenwright lawsuit.

Indeed, Plaintiff’s argument that “no

one... followed ... or understood (the ethics policy)... including
... Vice President John Lange” comes directly from a deposition
taken in the Glenwright proceedings.
¶¶ 27-8).

(Dkt. No. 24-8, Exh. D,

Since Plaintiff improperly relies on this extraneous

“evidence,” he cannot use it to create a material issue of fact in
the instant case.

As such, any reliance on information from

Glenwright is rejected by this Court as inadmissible and does not
create a dispute of fact.
I also find that Plaintiff cannot show any circumstances that
require an inference of age discrimination.
could

include

an

“employer’s

criticism

Such circumstances
of

the

plaintiff’s

performance in [age] degrading terms, [or] the employer’s invidious
comments about others in the employee’s protected group....”

See

Anderson v. Hertz Corp., 507 F. Supp. 2d 320, 327 (S.D.N.Y. 2007),
-Page 13-

aff’d, 303 Fed Appx. 946 (2d Cir. 2008).

A plaintiff may also

establish an age-based discrimination inference by showing that his
employer treated him less favorably than a similarly situated
employee outside the protected group.

See Khan v. Bank of Am.,

N.A., 572 F. Supp. 2d 278, 292 (N.D.N.Y. 2008), aff’d, 2010 U.S.
App. LEXIS 8190 (2010).
Plaintiff continues to allege that he received less favorable
treatment than other employees guilty of the same policy violations
and that he should have received a final warning instead of
termination.
Plaintiff

(Dkt. No. 24-4 at 3-6).

must

show

that

the

To prove this claim,

situation

between

him

and

his

comparators was so similar that it supports an inference that the
difference in treatment can be attributable to discrimination.
Khan, 572 F. Supp. at 291.

However, Plaintiff fails to submit

proof to establish that other, significantly younger, employees
participated in the same or substantially similar conduct and were
treated more favorably than he was, a necessary condition for
establishing an inference of age bias.

See Ruiz v. County of

Rockland, 609 F.3d 486 (2d Cir. 2010).
When

asked

to

name

others

similarly

situated,

Plaintiff

claimed that two younger women and some unidentified men engaged in
the “same conduct but were not terminated.”
31).

(Dkt. No. 24-5 at 23-

However, Plaintiff provided no evidence that any of the

alleged comparators were substantially younger than he, nor did he
provide any evidence that any of them ever sent or stored any
offensive e-mails.

Instead, Plaintiff stated that when he claimed
-Page 14-

that younger men and women used e-mails in “precisely the same
fashion” as he did, but were not terminated, he was referring to
the fact that these other employees had merely “sent e-mails that
were not necessarily work related.”

(Dkt. No. 24-5 at 30-1; 53).

However, Xerox’s e-mail policies explicitly allow for “[c]asual
personal use for the convenience of the users only if limited in
frequency and duration.”

(Dkt. No. 20-5, Exh. A at 11).

Thus,

another employee’s casual, non-offensive use could not place he or
she in a situation similar to Plaintiff.

Plaintiff could not

recall ever receiving offensive or inappropriate e-mails from any
of the alleged comparators, and thus had no evidence that Xerox
treated any similarly situated employees more favorably.

As such,

I find that drawing an inference of age bias is unwarranted.
Plaintiff also improperly cites to inadmissible evidence from
the Glenwright case noted above.

In this instance, Plaintiff

contends that six of the employees investigated during the April
2006 investigation at issue in Glenwright “all engaged in the same
conduct [as Plaintiff] but were not terminated.”
at 5).

(Dkt. No. 24-4

Even if Plaintiff’s reliance on Glenwright evidence were

admissible, Plaintiff’s argument would be of no assistance in
establishing

his

age

discrimination

claim

because

all

six

individuals cited by Plaintiff are actually several years older
than Plaintiff.6

Thus, even if the six employees from Glenwright

6

The six individuals Plaintiff cited from Glenwright and
their respective ages at the time of the 2006 investigation are
as follows: Doug Majors, 63; John Beyea, 53; Richard Van Grol,
-Page 15-

had received more favorable treatment, no inference of age bias
could be properly drawn because they were all older than Plaintiff,
who

was

only

forty-four

Additionally,

Plaintiff’s

when

he

was

terminated

from

on

Glenwright

evidence

reliance

Xerox.
is

further discredited as the Glenwright investigation resulted in
Xerox’s termination of two dozen employees guilty of the most
egregious policy violations, three of whom were under forty. (Dkt.
No. 29-1 ¶ 5). Thirty-two Xerox employees in Glenwright were given
final warnings, with twenty-two of them as old or older than the
Plaintiff in the instant action.

Id.

Finally, none of the decision-makers in Glenwright were the
decision-makers involved in the instant action. Additionally, none
of the Glenwright plaintiffs had personal knowledge of the facts
surrounding this case.
were

even

employed

at

Indeed, none of the Glenwright plaintiffs
Xerox

during

Xerox’s

Plaintiff Spiess or when he was terminated.

investigation

of

As such, and as noted

above, any information from Glenwright drawn by Plaintiff in an
attempt to create a material dispute of fact is rejected.7

55; Daniel Burkhart, 48; Sam Stolt, 60; and Tom Peer, 59. (Dkt.
No. 29-1 ¶¶ 8-13). Further, the evidence submitted in Glenwright
shows that Majors and Beyea were terminated, Burkhart and Stolt
received final warnings, and no action was taken against Van Grol
and Peer as the investigation did not reveal anything in their email accounts that would have violated Xerox’s e-mail and ethics
policies. (See Dkt. No. 29-1 ¶¶ 8-13; Dkt. No. 29-2, Exh. A, B).
7

The Court notes Plaintiff’s attempt to create a question of
fact by submitting, among numerous others, the affidavit of
Anthony Horgan, a “lower-level manager” at Xerox whose testimony
was submitted during the Glenwright investigation. (Dkt. No. 248, Exh. A). Horgan’s affidavit included his belief that the
-Page 16-

That Plaintiff argues he should have received a final warning
instead of termination, or that Xerox should have used a different
investigation process (Dkt. No. 24-3 ¶¶ 24-6), does not create a
material issue of fact.

It is not the province of the court to

second-guess such business decisions.

What matters is why the

employer took the action, not whether it was wise to do so.

See

Seils v. Rochester City Sch. Dist., 192 F. Supp. 2d 100, 111
(W.D.N.Y. 2002)(Larimer J.), aff’d, 99 Fed. Appx. 350 (2d Cir.
2004);

cert.

Employers

denied,

should

be

544
free

U.S.
to

920

(2005)(citations

choose

how

to

omitted).

discipline

their

employees without facing liability simply because the employees
belong to a protected class.

See id.

See also Parcinski v. Outlet

Co., 673 F.2d 34, 37 (2d Cir. 1982), cert. denied, 459 U.S. 1103
(1983)(“The [ADEA] does not authorize the courts to judge the
wisdom of a corporation’s business decisions”); Kearney v. County
of Rockland, 185 Fed. Appx. 68, 69-70 (2d Cir. 2006).
Plaintiff also attempts to create an issue of fact by alleging
that the investigation and terminations within Xerox occurred “on
the eve of a voluntary reduction in force” and that some of the
employees

terminated

after

the

replaced by younger employees.

Glenwright

investigation

(Dkt. No. 24-4 at 3).

were

Plaintiff’s

Glenwright investigation was “flawed” and discriminatory. See
id. Horgan’s affidavit also revealed that Horgan left Xerox in
June of 2006, showing that Horgan had no part of the
investigation at the center of the instant action. As such, this
Court gives no weight to Horgan’s affidavit. Plaintiff’s reliance
on Horgan’s testimony (see, e.g., Dkt. No. 24-3 at 4; 24-4 at 5)
is rejected, and no dispute of fact is found therefrom.
-Page 17-

argument is not persuasive.

First, the claims regarding the

Glenwright investigation are not a part of the record in this case
for the reasons noted above.

Second, Plaintiff has presented no

evidence that there was an impending voluntary reduction in force
within

Xerox

at

the

time

of

his

investigation,

or

that

investigation was pretext for targeting older workers.

the

In fact,

when questioned regarding these claims, Plaintiff admitted that he
did not recall that he was selected for termination on the eve of
a

voluntary

reduction

in

force.

(Dkt.

No.

24-5

at

9-10).

Plaintiff admitted only to hearing “rumors” with no specific
statement from management.

See id.

Further, when asked how he

heard about the alleged voluntary reduction in force after his
termination, Plaintiff replied that he would occasionally speak
with co-workers and that “I think one guy called me and said, you
know, ‘They are laying off.’
Plaintiff

has

investigation

no
was

proof

to

pretextual

That’s about it.”
support
or

his

that

Id.

claims

its

that

real

motive

Since
Xerox’s
was

to

terminate older workers, this Court rejects Plaintiff’s argument
and finds no material issue of fact.

I find that Xerox had

legitimate,

for

terminate

non-discriminatory

Plaintiff.

discrimination

claims

As

such,

under

the

reasons
I

find

ADEA

dismissed.

-Page 18-

and

its

that
the

decision

Plaintiff’s
NYSHRL

must

to
age
be

II.

Plaintiff has Failed to Prove his Title VII Sex Discrimination
Claims.
Plaintiff alleges that Xerox’s enforcement of its policies

“harm male employees ... and favor female employees” in violation
of Title VII.

(Dkt. No. 1 ¶ 51).

Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e, et seq., as amended, prohibits
employment discrimination on the basis of, among other things, sex.
See Ricci v. DeStefano, 129 S. Ct. 2658, 2672 (2009).

Employment

discrimination claims brought under Title VII are analyzed under
the

McDonnell

Douglas

burden-shifting

analysis

noted

above.

McDonnell Douglas Corp., 411 U.S. at 802-3.
Plaintiff has failed to substantiate his sex discrimination
claims

with

any

evidence

that

would

permit

a

finding

of

discrimination under the McDonnell Douglas framework. Specifically,
Plaintiff fails to submit any evidence that the adverse employment
actions at issue occurred under circumstances sufficient to allow
a rational fact-finder to infer a discriminatory motive.

As such,

Plaintiff’s sex discrimination claims fail to satisfy the fourth
element for establishing a prima facie case of discrimination under
the McDonnell Douglas framework, and therefore fails to satisfy his
evidentiary burden.
A male plaintiff may raise an inference of discrimination by
showing that he was treated less favorably than female employees
who were similarly situated; however, the plaintiff must show he
was similarly situated in all material respects to the individuals
with whom he seeks comparison.

See Shumway v. UPS, 118 F.3d at 64.

-Page 19-

Plaintiff must show that he and his comparators engaged in acts of
comparable severity, but that he suffered greater punishment than
his comparators based on an application of disciplinary rules or a
code of conduct.
Appx. at 457.

See Carter v. New Venture Gear, Inc., 310 Fed.

See also Jackson v. PLANCO, 660 F. Supp. 2d at 578.

Here, Plaintiff fails to produce any evidence of similarly
situated women who received better treatment than Plaintiff.

In

fact, as a result of the investigation at the center of the instant
action, Xerox disciplined two women, including terminating one of
them (Pam Rama).8

The other woman, Christine Kane, was found to

have engaged in less egregious conduct.

As noted above, Plaintiff

claimed there were two younger women outside the investigation who
engaged in the same e-mail usage (as his own), but were not
terminated.

However, as noted previously, when questioned about

the two women, Plaintiff’s response made it clear that their emails did not reach the same offensive level of conduct.

Indeed,

Plaintiff stated only that he recalled receiving “[j]ust you know,
maybe a news item they have seen that’s funny, or a joke, you know,
just something kind of funny.”
mentioned

above,

Xerox’s

Code

(Dkt. No. 24-5 at
of

8

Conduct

expressly

9).

As

permits

Although Plaintiff attempts to create an issue of fact by
claiming that Pam Rama’s policy violation report was unsigned
(Dkt. No. 24-4 at 13-4), such a claim does not negate the
evidence submitted to this Court that shows Rama was actually
terminated from Xerox. (Dkt. No. 24-7; Exh. G at 29). As such,
this Court will find no inference that the employment actions at
issue were decided based upon the gender of the employees under
investigation.
-Page 20-

employees’

occasional

prohibited

conduct.

unpersuasive

and

personal

use

Therefore,

fail

to

raise

of

its

systems

Plaintiff’s
a

material

for

non-

arguments

are

issue

of

fact.

Accordingly, I find that Plaintiff has not presented sufficient
evidence to permit a rational fact-finder to find a sex-based
inference

of

discrimination.

As

such,

Plaintiff’s

sex

discrimination claims under Title VII are hereby dismissed.
CONCLUSION
For the reasons set forth above, Defendant Xerox’s motion for
summary

judgment

is

granted.

Plaintiff’s

complaint

is

dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.

s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
July 21, 2011

-Page 21-

hereby