JIMENEZ v. POTTER

DAVID BRIONES, District Judge

On this day, the Court considered a "Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment" filed by Defendant John Potter, Postmaster General, United States Postal Service, in the above-captioned cause on November 5, 2004. On November 30, 2004, Plaintiff Oscar Jimenez filed a "Response To Defendant's Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment" ("Response"). Defendant filed a "Reply To Plaintiff's Response And Supplement To Defendant's Motion For Summary Judgment" ("Reply") on December 14, 2004. It is the Court's opinion that Defendant's Motion should be granted for the reasons that follow.

Plaintiff's Response was clearly not proofread before it was filed. The Court cautions Plaintiff's counsel to proofread all future documents before filing them.

BACKGROUND

Because the Court presently considers Defendant's Motion for summary judgment, all factual questions and inferences are viewed in a light most favorable to Plaintiff. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994).

Plaintiff is a Mexican-American man over the age of forty, who suffers from diabetes and an anxiety disorder. He was employed by the United States Postal Service ("USPS") from 1985 until he retired in 2001. In 1998, Plaintiff was promoted to Supervisor of Distribution Operations, and he continued in that position until his retirement. The USPS underwent restructuring in 1993. Soon afterwards, Plaintiff began suffering from high levels of stress, anxiety, and panic attacks. That same year, Plaintiff was diagnosed with diabetes.

On January 9, 1998, shortly after arriving at work, Plaintiff asked the other supervisors to inform casual employees that they were needed to stay to work overtime. Casual employee Maria Teresa Alarcon ("Alarcon") approached Plaintiff and asked why she had to work overtime. Plaintiff instructed Alarcon to raise her concern to her supervisor. Alarcon spoke to him in an aggressive tone, became belligerent, and told Plaintiff she was not going to stay on overtime because other casual employees had already gone home. Plaintiff again directed Alarcon to speak to her supervisor.

Casual employees are hired by the USPS for temporary periods of time, usually 90-day increments, as a supplement to the regular workforce during periods with heavy volumes of mail.

About twenty minutes after this exchange, Plaintiff observed Alarcon socializing away from her work station. Plaintiff instructed Alarcon to go home, and then walked away. Alarcon pursued after Plaintiff to another part of the building, asking Plaintiff why he was sending her home when he had previously directed her to stay to work overtime. Alarcon followed him around in an aggressive manner, repeatedly questioning his decision. Plaintiff continued to refer Alarcon to her supervisor.

On January 11, 1998, Plaintiff informed his immediate supervisor, Manager of Distribution Operations ("MDO") Mark Fernandez ("Fernandez"), about the incident with Alarcon. Fernandez told Plaintiff not to worry about it, that it would be okay. Dissatisfied with Fernandez's response, on January 14, 1998, Plaintiff submitted to the USPS management a "Letter of Concern and for Corrective Action," in which he described the incident with Alarcon and stated:

I, Oscar Jimenez, refuse to work near Terry Alarcon at any Postal operation at the Boeing Main Office. With respect to your position and Mr. Joe Richards', this is a precaution and not a threat (To include my doctors [sic] orders). Again, if she continues to work at any shift at the Boeing Main Office I refuse to work until corrective action has been taken.

On January 14, 1998, Plaintiff submitted a request for sick leave, along with a letter from his physician. Said letter stated that Plaintiff's anxiety disorder had been "exacerbated by his situation at work" and that it would be "advantageous for him to take sick leave for . . . 2 and ½ weeks." On January 21, 1998, Plaintiff returned to work, was placed on paid administrative leave, and was asked for his identification badge and radio. Plaintiff remained on paid administrative leave until mid-March, 1998.

On February 10, 1998, while still on administrative leave, Plaintiff met with Fernandez, MDO Joe Richards ("Richards"), and Tito Najera, Plaintiff's Union Representative. During the meeting, Fernandez informed Plaintiff that he intended to propose that Plaintiff receive a demotion in grade because of the incident between Plaintiff and Alarcon and Plaintiff's subsequent refusal to work. Plaintiff was asked to write a letter to Plant Manager Juan Flores ("Flores"), who would make the final decision regarding Plaintiff's proposed demotion. Plaintiff sent a letter to Flores on February 12, 1998.

On March 9, 1998, Plaintiff received a "Notice of Proposed Adverse Action — Reduction in Grade and Pay." The letter, signed by Fernandez, charged Plaintiff with "unsatisfactory performance — refusal to perform supervisory duties," citing Plaintiff's failure to control the situation with Alarcon on January 9, 1998, and his later refusal to work. If approved, the proposed reduction in grade and pay would result in Plaintiff's demotion to a part-time flexible distribution clerk as of July 4, 1998.

Plaintiff returned to work from administrative leave on March 16, 1998. Upon his arrival, Plaintiff was given a visitor's badge. On March 17, 1998, Plaintiff began taking paid sick leave, and submitted a second letter to Flores. In this letter, Plaintiff described the incident with Alarcon and claimed that he was being treated unfairly.

On May 28, 1998, Flores sent a memorandum to Martha Vega, a Labor Relations Specialist, confirming Fernandez's proposal to demote Plaintiff to a part-time flexible distribution clerk. In the memorandum, Flores cited Plaintiff's failure to take responsibility for his actions and the lack of any mitigating circumstances. Plaintiff received a "Letter of Decision — Reduction in Grade" on July 29, 1998, signed by Flores. In the letter, Flores indicated that he had considered Plaintiff's past record, length of postal service, and the requirements of serving as a supervisor, and had concluded that Plaintiff's actions during and following the incident with Alarcon impeded both Plaintiff's ability to perform his job duties and the efficiency of the USPS.

On September 21, 1998, Plaintiff received another letter of decision, which rescinded the July 29 letter of reduction. The reduction in grade was in effect for just more than two months. Plaintiff's pay records indicate that during that time, Plaintiff's pay remained unchanged. Plaintiff claims to have been on paid sick and annual leave during the reduction, on which he remained until November, 1998.

On July 8, 1999, when Plaintiff arrived at work, he was approached in the supervisor's parking lot by Gerardo Najera ("Najera"), a deaf craft employee who often uses his hands to communicate. According to Plaintiff, Najera pointed his finger in Plaintiff's face and indicated that all of Ramon Diaz's problems were because of Plaintiff. Plaintiff told Najera to take his finger out of Plaintiff's face, and that Najera did not know what was going on with Ramon Diaz. Najera then informed Plaintiff that he was going to speak with Flores and walked away.

Ramon Diaz was also a hearing-impaired craft employee and a friend of Mr. Najera. The record does not define craft employee.

Upon entering the building, Plaintiff came across Andy Pacheco ("Pacheco"), who noticed that Plaintiff looked excited and asked what was wrong. Plaintiff related the incident in the parking lot to Pacheco. Minutes later, Plaintiff informed Richards, and then Fernandez, about the incident. Richards advised Plaintiff to talk to Najera's supervisor and take the necessary corrective action.

On July 12, 1999, Plaintiff submitted a memorandum to the Postal Inspectors about the incident with Najera. Plaintiff stated in the memorandum that he believed Mr. Najera's finger pointing constituted a threat against Plaintiff. On July 27, 1999, Vega sent a memo to Richards regarding Plaintiff's July 12 memorandum to the Postal Inspectors, and inquired whether any administrative action had been taken. Richards was asked to dispel rumors that Najera and Plaintiff had been in a fight.

On August 5, 1999, Richards called Plaintiff into his office to ask Plaintiff whether he had told anyone about the incident with Najera. Plaintiff informed Richards that the only person he had talked to was Pacheco. Richards then became increasingly agitated, yelled at Plaintiff for telling Pacheco, and stood within one foot of Plaintiff while yelling at him. Plaintiff felt threatened, and fled the office, leaving Richards calling out his name after him.

The following day, on August 6, 1999, Plaintiff called Postal Inspector Tony Sifuentes ("Sifuentes") to follow up on his earlier memorandum. Because the incident had taken place nearly a month prior, suggesting that there was no impending danger, Sifuentes concluded that no assault had occurred and that it was an administrative matter.

On August 12, 1999, Richards wrote a memorandum to Vega. Richards had talked to several individuals about the incident, including Plaintiff and Najera, but found no evidence to warrant taking administrative action. In the memorandum to Vega, Richards concluded that Najera had not accosted Plaintiff. Plaintiff was never disciplined following the incident with Najera or the meeting with Richards.

On May 2, 2003, Plaintiff filed the instant cause of action asserting claims of discrimination on the basis of his disability, national origin, gender, and age, the creation of a hostile work environment, and retaliation. The instant Motion followed.

STANDARD

Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.

The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.

DISCUSSION

Through his Second Amended Complaint, Plaintiff alleges that Defendant discriminated against him on the basis of his disability, in contravention of the Rehabilitation Act of 1973, 29 U.S.C. § 791, as amended, his national origin and gender, in violation of Title VII, 42 U.S.C. § 2000e, et seq., and his age, as proscribed by the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. Plaintiff further asserts hostile work environment and retaliation claims, pursuant to Title VII. In his instant Motion, Defendant moves for summary judgment regarding each of Plaintiff's claims on the ground that no genuine dispute about any material fact exists, and that Defendant is entitled to judgment as a matter of law. The Court elects to discuss Plaintiff's disability discrimination claim first. The Court then takes up Plaintiff's national origin, gender, and age discrimination claims, which the Court discusses together, before turning to Plaintiff's claims of a hostile work environment and retaliation. Ultimately, the Court concludes that no genuine issue of material fact exists as to any of Plaintiffs claims and that Defendant is entitled to summary judgment.

I. REHABILITATION ACT CLAIM

The Rehabilitation Act prohibits discrimination by federal agencies against otherwise qualified individuals with disabilities. The Rehabilitation Act provides, in pertinent part: "No otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity . . . conducted by any Executive agency[.]" 29 U.S.C.A. § 794(a) (West Supp. 2003); see also Lollar v. Baker, 196 F.3d 603, 606 (5th Cir. 1999). To qualify for relief under the Rehabilitation Act, a plaintiff must prove that he: (1) was an individual with a disability; (2) was otherwise qualified; (3) worked for a federal agency; (4) and was denied the benefits of his employment or subjected to discrimination solely because of his disability. See id; Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993).

The Rehabilitation Act defines "disability" to mean "a physical or mental impairment that substantially limits one or more major life activities." 29 U.S.C.A. § 705(9)(B) (West Supp. 2003). Because the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12101, et seq., defines a disability in substantially the same terms as the Rehabilitation Act defines an individual with handicaps, ADA cases are instructive. Chandler, 2 F.3d at 1391. The term "substantially limits" under the ADA means being unable to perform a major life activity that the average person in the general population can perform or being significantly restricted as to the condition, manner, or duration under which the average person in the general population can perform the same major life activity. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164 n. 5 (5th Cir. 1996); 29 C.F.R. § 1630.2(j)(1) (2002).

In order qualify for relief under the Rehabilitation Act, Plaintiff must show that one or more major life activity is substantially limited by a physical and mental impairment. See 29 U.S.C.A. § 705(9)(B). Here, Plaintiff bases his Rehabilitation Act claims on his diabetes, stress, depression, and anxiety disorder. Plaintiff argues that he is disabled because he can only perform some manual tasks, can not concentrate or speak correctly, is learning impaired, has panic attacks which are not always controlled by medication, and has blurry vision caused by his diabetes. However, the summary judgment evidence reflects that Plaintiff performed all of his job duties, performed manual tasks at home while on sick and annual leave, and continued to drive and participate in his children's sporting activities. Plaintiff has not demonstrated that he is unable to perform a major life activity that the average person in the general population can perform, nor that he is significantly restricted as to the condition, manner, or duration, under which the average person in the general population can perform a major life activity. As such, Plaintiff has failed to establish that any of his medical conditions "substantially limit" his major life activities. See Taylor, 93 F.3d 155, 164 n. 5 (5th Cir. 1996). Thus, Plaintiff has not demonstrated that he qualifies for relief under the Rehabilitation Act, and Defendant is entitled to judgment as a matter of law on Plaintiff's Rehabilitation Act claim.

II. NATIONAL ORIGIN, GENDER, AND AGE DISCRIMINATION CLAIMS

Title VII of the Civil Rights Act makes it illegal for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of any individual's race, . . . sex, or national origin." 42 U.S.C.A. § 2000e-2(a)(1) (West 1994). The Age Discrimination in Employment Act forbids identical conduct when the discrimination is "because of such individual's age." 29 U.S.C.A. § 623(a)(1) (West 1999).

In employment discrimination cases, it is imperative that a nonmovant plaintiff "present evidence — not just conjecture and speculation" that the defendant discriminated against the plaintiff on the basis of a protected trait. See Grimes v. Tex. Dep't of Mental Health, 102 F.3d 137, 140 (5th Cir. 1996). The focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Id. at 139. A plaintiff can prove such discriminatory animus by direct evidence or by an indirect or inferential method of proof. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995). Absent direct proof, the plaintiff bears an initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence to raise an inference of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999).

To establish a prima facie case for national origin or gender discrimination, Plaintiff must show that: (1) he was a member of an identifiable protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) others outside his protected class, who were similarly situated, were treated more favorably. See Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005). In age discrimination cases under the ADEA, the first three elements of the prima facie case are the same. See Bodenheimer, 5 F.3d at 957. For the fourth element, the plaintiff must show that the position was either: i) filled by someone outside the protected class, ii) was filled by someone younger, or iii) that the plaintiff was otherwise not promoted because of his age. See Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir. 2000). This initial burden is "not onerous." Burdine, 450 U.S. at 253, 101 S. Ct. at 1094

Through the instant Motion, Defendant argues that Plaintiff cannot establish a prima facie case of discrimination on any of the bases asserted because being temporarily demoted after the incident with Najera does not constitute an adverse employment action, the third element of a prima facie case. Plaintiff argues that he lost overtime pay that he would have been entitled to as a supervisor because of the demotion. The Court agrees with Defendant that the temporary demotion is not an adverse employment action.

The Fifth Circuit defines an "adverse employment action" as one requiring an ultimate employment decision, "such as hiring, granting leave, discharging, promoting, and compensating." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997), cert. denied, 522 U.S. 932, 118 S. Ct. 336, 139 L. Ed. 2d 260 (1997) (quoting Dollis v. Rubin, 77 F.3d 777, 781-32 (5th Cir. 1995)). Further, employment actions are adverse only where pay, benefits, or level of responsibility are affected. Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999). Here, while Plaintiff received a "Letter of Decision — Reduction in Grade" on July 29, 1998, which indicated that he would be demoted to a part-time flexible distribution clerk with a corresponding cut in pay, that demotion was rescinded by letter dated September 21, 1998. Moreover, during the two months the demotion was in effect, the record reflects that his pay remained unchanged and that he never performed the duties of a part-time flexible distribution clerk.

Plaintiff tries to rescue his discrimination claim by focusing the Court's attention on overtime pay he argues he would have been eligible for as a supervisor but not as a part-time flexible distribution clerk. Plaintiff's argument fails, however, because Plaintiff was on both sick and annual leave during the two months the demotion was in effect, and therefore did not work any overtime. Because Plaintiff did not work an overtime, his pay was not affected. Thus, it is the Court's opinion that Plaintiff is unable to show that he suffered an adverse employment action, the third element of a prima facie case of national origin, gender, and age discrimination. Consequently, Defendant is entitled to judgment as a matter of law for these claims.

III. HOSTILE WORK ENVIRONMENT CLAIM

Through the instant Motion, Defendant also moves for summary judgment on Plaintiff's hostile work environment claim. Plaintiff claims that he was subjected to a hostile work environment when he was allegedly threatened by a craft employee and management both failed to take corrective action and when Richards lectured Plaintiff for discussing the incident with Pacheco. Defendant argues that he is entitled to judgment as a matter of law because Plaintiff cannot establish his prima facie case of a hostile work environment. The Court agrees that Defendant is entitled to judgment as a matter of law.

In order to establish a prima facie case of a hostile work environment under Title VII, Plaintiff must show: (1) that he belongs to a protected class; (2) that he was subjected to unwelcome harassment; (3) that the harassment was based on national origin, gender, or age; (4) that the harassment was sufficiently severe to alter the terms and conditions of Plaintiff's employment; and (5) that the employer knew or should have known of the harassment in question and failed to take remedial action. Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993); Felton v. Polles, 315 F.3d 470, 484 (5th Cir. 2002). The fifth element is not necessary when the harassment is committed by a supervisor with immediate or successively higher authority over the plaintiff. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed 2d 662 (1998).

To determine whether a work environment is hostile or abusive, all circumstances must be considered, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S. Ct. at 371. Discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII. Wallace v. Texas Tech University, 80 F.3d 1042, 1049 (5th Cir. 1996). A complainant must show that the discriminatory conduct was severe or pervasive enough to create an objectively hostile or abusive work environment. Harris, 510 U.S. at 22, 114 S. Ct. at 370.

Defendant contends that Plaintiff has not established that the alleged harassment was based on his national origin, gender or age. Defendant further argues that the complaints alleged are neither severe nor pervasive enough to satisfy the fourth element of Plaintiff's prima facie case. Plaintiff argues that Richards only attempted to stop the rumors, and that as a result, Plaintiff continued to be subjected to more rumors and humiliation, and worked in fear of Najera. Nonetheless, there is no evidence in the record that any of these incidents occurred because of discriminatory intent. A hostile work environment is one that is permeated with "discriminatory intimidation, ridicule, and insult." Harris, 510 U.S. at 21, 114 S. Ct. at 367. Plaintiff has offered no evidence of derogatory remarks, insults or ridicule based on his national origin, gender, or age. It is therefore the Court's opinion that Plaintiff fails to establish the third element of his prima facie case.

Furthermore, Plaintiff fails to establish that the harassment was severe or pervasive enough to alter the terms, conditions, or privileges of his employment. The Fifth Circuit has refused to recognize a few harsh words as rising to the level of an actionable offense under Title VII. McConathy v. Dr. Pepper/Seven-Up Corp., 131 F.3d 558, 564 (5th Cir. 1993). Moreover, "discourtesy or rudeness, `offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in terms and conditions of employment.'" Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999) (quoting Faragher, 524 U.S. at 787, 118 S. Ct. at 2283). The incident with Mr. Najera was an isolated one. Since Plaintiff did not find it necessary to characterize the incident as a threat until a month after it occurred, it is not serious enough to amount to changes in terms and conditions of employment. Likewise, Plaintiff's meeting with Richards, viewed in the light most favorable to Plaintiff, amounts to little more than a few harsh words, discourtesy and rudeness, which are insufficient to support Plaintiff's hostile work environment claim. See Indest, 164 F.3d 258 at 264. Thus, the Court finds that Plaintiff is unable to establish the fourth element of a prima facie case of his hostile work environment claim.

Therefore, it is the Court's opinion that Plaintiff has raised no genuine issues of material fact as to whether the harassment was based on Plaintiff's protected status or as to whether the harassment was severe or pervasive enough to alter the terms, conditions, or privileges of his employment. Defendant is accordingly entitled to judgment as a matter of law on Plaintiff's hostile work environment claim.

IV. RETALIATION CLAIM

Finally, Defendant moves for summary judgment on Plaintiff's claim that he was retaliated against when Richards yelled at Plaintiff regarding the incident with Najera and when the management failed to take any action against Najera. Defendant argues that Plaintiff is unable to substantiate a prima facie case of retaliation, and that as a result, Defendant is entitled to summary judgment. The Court agrees with Defendant.

In addition to prohibiting discrimination in the workplace, Title VII also punishes retaliatory practices, making it illegal "for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice" or because "he has made a charge, testified, assisted, or participated . . . in an investigation or proceeding under this subchapter." 42 U.S.C.A. § 2000e-3(a) (West 1994). The framework for analyzing a retaliation claim is the same as that used in the discrimination context. See Rios, 252 F.3d 375, 380 (5th Cir. 2001). Title VII "imposes liability for unlawful retaliation where (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action. Shirley v. Chrysler First, Inc., 970 F.2d 39, 41 (5th Cir. 1992).

Through the instant Motion, Defendant specifically asserts that Plaintiff cannot substantiate that he suffered an adverse employment action, the second element of his prima facie case. As noted above, employment actions are adverse only where pay, benefits, or level of responsibility are affected. See Pegram v. Honeywell, Inc., 361 F.3d 757, 769 (5th Cir. 2004). Here, Plaintiff admits that he was not disciplined for anything arising from the incident with Najera and further concedes that his job duties, pay, or benefits remained unaffected. Accordingly, the Court finds that Plaintiff has failed to demonstrate that he suffered any adverse employment action, that Plaintiff will be unable to establish a prima facie case of retaliation, and that Defendant is entitled to summary judgment as a matter of law.

CONCLUSION

Having carefully reviewed the arguments of each party and the record in this case, the Court concludes that Plaintiff has failed to raise genuine issues of material fact with regard to any of his claims under the Rehabilitation Act, Title VII, or the ADEA. Thus it is the Court's opinion that Defendant's Motion for Summary Judgment should be granted.

Accordingly, IT IS HEREBY ORDERED that Defendant John Potter's "Motion To Dismiss Or, In The Alternative, For Summary Judgment" is GRANTED.