The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
This is an employment discrimination case brought by Edward Anderson ("Plaintiff" or "Anderson") against his former employer, Equitable Resources, Inc. ("Defendant" or "Equitable"), a natural gas utility. Plaintiff asserts that he was terminated by Defendant due to his race (African American) and his age (51 at the time of his termination), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2(a)(1) ("Title VII") and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 623, et seq. ("ADEA"). Defendant claims that Plaintiff was fired for violating its employee policies by performing private work for an Equitable customer and by stealing Defendant's property. This matter is before the Court on Defendant's Motion for Summary Judgment. (Docket No. 22).
The question for the Court is whether summary judgment is appropriate when the terminated employee does not deny violating his former employer's policies but rather alleges that improper discrimination motivated the employer to apply the policies to him. Upon consideration of the parties' submissions and for the reasons given below, the Court holds that, given the lack of evidence showing discrimination or impugning Defendant's choice to enforce its policies, Defendant's motion will be GRANTED.
Plaintiff filed a Complaint against Defendant on July 8, 2008, alleging one count of racial discrimination in violation of Title VII and one count of age discrimination in violation of the ADEA. (Docket No. 1). On September 5, 2008, Defendant filed an Answer denying both counts and raising various affirmative defenses. (Docket No. 7).
On November 3, 2008, this Court referred the case to mediation (Docket No. 16), but the mediation did not result in a settlement of the case (Docket No. 17), and discovery proceeded. On July 23, 2009, one month after the close of discovery, Defendant filed the instant Motion for Summary Judgment, with its accompanying Concise Statement of Material Facts, Brief in Support, and Appendix. (Docket Nos. 22-25). On August 24, 2009, Plaintiff filed his Response and Brief in opposition to the motion, his Response to Defendant's Concise Statement of Material Facts (with an Appendix), and his own Concise Statement of Material Facts with a supporting Appendix. (Docket Nos. 26-31). Lastly, on September 4, 2009, Defendant filed a Reply Brief, a Response to Plaintiff's Concise Statement of Material Facts, and a Supplement to its Appendix. (Docket Nos. 32-34). Plaintiff did not seek the leave of the Court to file a Sur-Reply and the deadline for doing so has now passed. (See Docket No. 21).
Thus, the matter is fully briefed and Defendant's Motion for Summary Judgment is ripe for disposition.
Unless otherwise indicated, the following facts are uncontested.
A. Plaintiff's Employment History and Status
Plaintiff Anderson is an African-American man who was employed by Defendant as a Customer Serviceman. (Docket Nos. 23 at ¶1; 28 at ¶1). Defendant fired Plaintiff on August 19, 2005 (Docket No. 25-3 at 18). At that time, Plaintiff was 51 years old. (Docket Nos. 30 at ¶38; 33 at ¶38). Anderson worked at Equitable for over twenty seven (27) years. (Docket Nos. 30 at ¶38; 33 at ¶38). Over the course of that period, he was subject to discipline on four different occasions, although none of them are adduced by Defendant as reasons for his termination.*fn1 (Docket Nos. 23 at ¶4; 28 at ¶4).
While he was employed by Equitable, Anderson also performed work as a private plumber. (Docket Nos. 23 at ¶5; 28 at ¶5). Defendant characterizes this as being "self-employed as a private plumber." (Docket No. 23 at ¶5). Plaintiff describes it differently, stating that "with the exception of doing gas lines, he performed plumbing work, 'off and on' and 'here and there' as 'side work,'" and testified that he thought approximately 350 other employees at Equitable were also performing "side work." (Docket No. 28 at ¶5).
In August or September of 2005, around the time of Plaintiff's termination, Equitable reached a collective bargaining agreement with Plaintiff's union. (Docket Nos. 30 at ¶33; 33 at ¶33). As part of that agreement, the terms of the employees' pension benefits changed and employees were given three retirement benefits options, one of which was a "rollover program" allowing employees to roll their defined benefits into a 401K account, an option for which an "additional three years of age and an additional three years of service was offered for purposes of calculating the benefit." (Docket Nos. 30 at ¶¶35-7; 33 at ¶¶35-7). With those additional years credited to him, Plaintiff would have been able to retire with a full pension almost immediately. (Docket Nos. 30 at ¶38; 33 at ¶38). At the time of Anderson's termination, Defendant was in the process of eliminating positions like his through attrition and was not hiring people to replace employees from Anderson's bargaining unit who left the company. (Docket Nos. 30 at ¶¶32-3; 33 at ¶¶32-3).
B. The Greentree Road Property
Defendant contends that Plaintiff was fired for misconduct surrounding an incident at a customer's property on Greentree Road in Pittsburgh, Pennsylvania. (Docket Nos. 30 at ¶17; 33 at ¶17). In March 2005, Plaintiff responded to a call from the owner of the Greentree Road property, a customer of Defendant, requesting advice from Equitable about moving the gas meter from one location to another to facilitate improvements to the property. (Docket Nos. 23 at ¶¶16-18; 28 at ¶¶16-18). Because the work involved moving both the gas meter, owned by Equitable, and the gas service line pipes, owned by the customer, Anderson told him that he would have to hire an independent plumber to move the pipes. (Docket Nos. 23 at ¶19; 28 at ¶19). After the property owner chose an independent plumber, Plaintiff, as part of his employment with Equitable, spoke to the plumber about how to do the work. (Docket Nos. 23 at ¶20; 28 at ¶20).
However, when Plaintiff drove by the Greentree Road property in July, 2005, he noticed that the meter had not yet been moved and spoke to the owner who told him that he had not arranged with the plumber to do the work. (Docket Nos. 23 at ¶¶21-3; 28 at ¶¶21-3). The next day, Plaintiff returned to the Greentree Road property and offered to do the work himself as an independent plumber, was hired to do so, and began the job. (Docket Nos. 23 at ¶¶24-5; 28 at ¶¶24-5). In the course of the work, Plaintiff noticed a leak in the main gas line and called his employer, who sent out Don Patton, another Equitable Customer Serviceman, to inspect it, which he did before calling an Equitable street crew to repair it. (Docket Nos. 23 at ¶¶25-6; 28 at ¶¶25-6). Plaintiff notes that at the time neither Patton nor anyone else from Equitable expressed any concern with the fact that Plaintiff was doing private work for an Equitable customer. (Docket No. 28 at ¶26).
Subsequently, on July 26, 2005, Anderson did more work at the Greentree Road property before leaving to report for work at 4:00 p.m. (Docket Nos. 23 at ¶¶27-8; 28 at 27-8). On his way, he called Equitable to request a service line inspection,*fn2 and specifically requested that Joe Haines, another Equitable Customer Serviceman be assigned to inspect it. (Docket Nos. 23 at ¶¶29-30; 28 at ¶¶29-30). When he arrived at work, Plaintiff spoke to Haines and told him to expect a service call and that he, Anderson, had done the work. (Docket Nos. 23 at ¶31; 28 at ¶31).*fn3 Plaintiff was not at the Greentree Road property when Haines performed his inspection, but his adult nephew, who had been assisting Plaintiff, was; his nephew met Haines and provided him with the OQ Identification number "EA4518" for the work. (Docket Nos. 23 at ¶¶ 32-3; 28 at ¶¶32-3).
An "OQ number" is an identification number issued to independent plumbers who have completed the Operator Qualification training required to be qualified to work on natural gas lines. (Docket Nos. 23 at ¶¶7-8; 28 ¶¶7-8). Defendant issued "OQ cards" with OQ numbers to plumbers who had completed Equitable's own OQ training program, and made it a policy not to issue them to its own employees. (Docket Nos. 23 at ¶¶9-10; 28 at ¶¶9-10). The format for Equitable's OQ numbers was (plumber's initials) (four digits from the plumber's social security number), the format of the number provided by Plaintiff's nephew. (Docket Nos. 23 at ¶33; 28 at ¶33). Defendant claims that only plumbers with Equitable OQ cards were allowed to perform work on gas lines connected to Equitable's system. (Docket Nos. 23 at ¶¶9, 15; 28 at ¶¶9, 15). Plaintiff contends that Equitable regularly accepted OQ cards issued by other companies; that, when he performed inspections of others' work, he had been told to accept and had accepted OQ cards issued by another company's Operator Qualification program; and that soon after the incident at issue, on July 29, 2005, Equitable announced that as of August 1, 2005 it would accept numbers from "Utility Technology International Corporation's (UTI) Plumber/Installer Operator Qualification program," the company that had issued Plaintiff's OQ card. (Id.). Defendant contends that by having his nephew provide an OQ number to Haines, Plaintiff falsely represented that he had an Equitable OQ card; Plaintiff contends that since everyone knew that Equitable employees did not have Equitable OQ cards, he was not intending to nor did he mislead Haines. (Docket Nos. 30 at ¶4; 33 at ¶4).
Subsequently, a leak developed in the gas line at the Greentree Road property and on August 4, 2005 Jack Mackin, Customer Service Foreman and Anderson's direct supervisor, and Charles Simon, Maintenance Manager and Mackin's supervisor, responded, as did an Equitable street crew.*fn4 (Docket Nos. 23 at ¶¶35-6; 28 at ¶¶35-6). At the Greentree Road property, some bags of pipe fittings and other materials were found, bearing labels that indicated that they were from U.S. Flow (a supplier for Equitable) and were "for Equitable Gas." (Docket Nos. 23 at ¶38; 28 at ¶28). The evidence concerning these bags is highly contested. Defendant contends that Simon collected the bags and used the purchase orders on them to determine that they had been issued by Equitable to Plaintiff's customer service van, but Plaintiff points out that this is based on the testimony of Robert Frankhouser, Equitable's Senior Human Resources Business Partner, and that Simon himself denies taking charge of the bags. (Docket Nos. 23 at ¶39; 28 at ¶39). Plaintiff contends that he originally acquired the bags by recovering them from a dumpster when Equitable was moving from and cleaning out its South Side location, that he thought doing so was not a problem since they had been thrown away, and that others had done the same thing. (Docket No. 28 at ¶41).
Subsequently, Equitable conducted an investigation into the work performed at the Greentree Road property. (Docket Nos. 23 at ¶42; 28 at ¶42). In the course of this investigation, numerous people were interviewed, including Don Patton, the owner of the Greentree Road property, members of the street crew, Haines, and Anderson himself. (Docket Nos. 23 at ¶45; 28 at ¶45). The findings from these interviews are contested by Plaintiff, who argues that the discovery production surrounding them is incomplete and contradictory. (Docket No. 28 at ¶45).
During the course of his interview, Plaintiff admitted that he had installed the gas service line and done other work at the Greentree Road property, and he further admitted that he had done similar private contract plumbing work for Equitable customers in the past. (Docket Nos. 23 at ¶¶47-8; 28 at ¶¶47-8). Plaintiff contends that this is because it was a routine practice, and points out that Defendant did not investigate his past work any further, which he considers "consistent with Equitable's acquiescence" to such work. (Docket No. 28 at ¶48). In that same vein, Plaintiff points to the testimony of Haines who testified that he had done other work where the private plumber was an Equitable employee and that there was "a culture of how it took place." (Docket No. 28 at ¶33).
C. Defendant's Policies & Employment Practices
1. Defendant's Official Policies
Three of Equitable's official policies are implicated in the present case. The first is Defendant's policy that it would not issue OQ cards to its own employees discussed supra. That policy is, in part, a means of implementing the second policy at issue: Defendant's Conflicts of Interest Policy. Equitable had a general Conflicts of Interest Policy (Docket No. 25-7 at ...