final report and recommendationi.bnet.com/blogs/bradley-trial-ruling.pdfpfizer, inc., defendant....

AO 72A(Rev.8/82)

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

WAYNE E. BRADLEY,

Plaintiff, CIVIL ACTION FILE

v. NO. 1:08-CV-3437-TWT-GGB

PFIZER, INC.,

Defendant.

FINAL REPORT AND RECOMMENDATION

In this employment discrimination case, Plaintiff Wayne E. Bradley (“Plaintiff”)

contends that his employer, Pfizer, Inc. (“Pfizer” or “Defendant”), discriminated and

retaliated against him on the basis of age, in violation of the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq., by selecting two

younger employees, rather than Plaintiff, to fill certain open positions. Plaintiff’s

complaint also alleges state law claims for intentional infliction of emotional distress

and invasion of privacy.

Pending before the court is Defendant’s Motion for Summary Judgment

(Doc. 54). For the reasons discussed below, I recommend that Defendant’s motion be

GRANTED IN PART and DENIED IN PART.

Case 1:08-cv-03437-TWT Document 71 Filed 01/21/11 of 32

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I. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when no genuine issues of material fact are present

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

The movant carries its burden by showing the court that there is “an absence of

evidence to support the nonmoving party’s case.” Celotex v. Catrett, 477 U.S. 317,

325 (1986). “Only when that burden has been met does the burden shift to the

nonmoving party to demonstrate that there is indeed a material issue of fact that

precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th

Cir. 1991).

The nonmovant is then required “to go beyond the pleadings” and to present

competent evidence in the form of affidavits, answers to interrogatories, depositions,

admissions and the like, designating “specific facts showing that there is a genuine

issue for trial.” Celotex, 477 U.S. at 324. See Fed. R. Civ. P. 56(e). “Mere

conclusions and unsupported factual allegations are legally insufficient to create a

dispute to defeat summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986) (citation omitted). Resolving all doubts in favor of the nonmoving party,

the court must determine “whether a fair-minded jury could return a verdict for the

plaintiff on the evidence presented.” Id. at 252.


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1 Plaintiff has not filed a proper response to Defendant’s Statement ofUndisputed Material Facts. See Local Rule 56.1(B). Many of Plaintiff’s responses areargumentative, fail to directly refute a fact with a response supported by specificcitations to the evidence, fail to state a valid objection to the admissibility of the factor state that the evidence does not support the fact, that the fact is not material, or thatPfizer otherwise failed to comply with the local rules. Nor do Plaintiff’s responses“contain individually numbered, concise ... responses corresponding to each of themovant’s numbered undisputed material facts,” in accordance with Local Rule56.1(B)(2)(a)(1). Plaintiff’s Statement of Material Facts for Jury Resolution (“PSMF”)is also argumentative and states legal conclusions rather than facts. (See, e.g., Doc. 59-2 at 12). Nonetheless, the court has relied only on those material facts that are notdisputed by the parties or those that are supported by the uncontroverted evidence.

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II. FACTS1

In light of the foregoing summary judgment standard, the court finds the

following facts for the purpose of resolving Defendant’s motion for summary

judgment only. Defendant Pfizer, which is headquartered in New York, is the world’s

largest research-based pharmaceutical company with over 80,000 employees

worldwide. Plaintiff has been employed with Pfizer since 1991.

Plaintiff was born on May 9, 1951. In 2007, Pfizer posted two open positions

for national Employers Medical Outcomes Specialist (“EMOS”). The EMOS

positions were designed to provide increased medical and clinical support to Pfizer’s

sales and marketing employees who were working with major employers.

(Defendant’s Statement of Undisputed Material Facts [“DSMF”] ¶¶ 1-8). After the

job openings were posted and applicants submitted resumes and applications, Pfizer’s


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2 Plaintiff states in his affidavit (filed in opposition to Pfizer’s motion forsummary judgment) that when Dr. Levinson interviewed him over the telephone,Dr. Levinson “asked me what was my age and said that I did not sound like a springchicken.” (Doc. 59, Pl.’s Aff., ¶ 4). However, Plaintiff unambiguously testified in hisdeposition that Dr. Levinson did not ask him his age. (Bradley Dep. at 84). “Whena party has given clear answers to unambiguous questions which negate the existenceof any genuine issue of material fact, that party cannot thereafter create such an issuewith an affidavit that merely contradicts, without explanation, previously given cleartestimony.” Van T. Junkins and Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657

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human resources department reviewed the qualifications of each of the applicants

against the minimum qualifications of the position, and forwarded the applications

that met the minimum qualifications to Dr. Ivan Levinson, the business unit’s top

manager. (Gierer Dep. at 38; Ex. P-2). Because the position of supervisory manager

over the EMOS positions was also vacant at the time, Dr. Levinson assumed the

responsibility for identifying and screening the best qualified candidates to interview

for the EMOS positions. (Levinson Dep. at 97; Govaker Dep. at 32). As part of the

screening process, Dr. Levinson spoke by telephone to a number of the applicants

who had submitted their resumes for consideration, including Plaintiff. (Pl.’s Dep.

at 82-83, Levinson Dep. at 31-34, 49-52).

Plaintiff testified that during his telephone screening interview with

Dr. Levinson, Dr. Levinson told Plaintiff that he was to be commended for recently

completing his advanced pharmacy degree, and also Dr. Levinson remarked, “You

don’t exactly sound like a spring chicken.”2 (Pl.’s Dep. at 84-85, 88-89, 114-


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(11th Cir. 1984). Plaintiff has provided no explanation for the contradictory testimony.Therefore, for the purpose of resolving Pfizer’s motion for summary judgment, thecourt has credited Plaintiff’s deposition testimony and ignored Plaintiff’s later-filedaverment in his affidavit filed in opposition to Pfizer’s summary judgment motion.

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16; Levinson Dep. at 45-46). Dr. Levinson denies making the “spring chicken”

comment or any reference to Plaintiff’s age during his telephone screening interview

with Plaintiff. (Levinson Dep. at 66-67; Levinson Aff. ¶ 14).

Based on his screening interviews, Dr. Levinson narrowed the pool to five

candidates, including Plaintiff, for formal, in-person interviews for the EMOS

positions at the beginning of 2008. The five finalists for the two open EMOS

positions were Plaintiff, Jon Vlasnik, Marcia Wright, David Lawrence, and Mark

Balk. All were current Pfizer employees. Jon Vlasnik’s date of birth is July 15,

1969. Marcia Wright was born on September 16, 1962. David Lawrence’s date of

birth is March 11, 1966, and Mark Balk’s date of birth is June 2, 1961. (DSMF

¶¶ 18-21).

Dr. Levinson then assembled an eight-member interview panel comprised of

two interview teams of four employees each to conduct the in-person interviews.

(Gierer Dep. at 38-43, 47). Each panelist received a Pfizer interview guide to help

them cover the critical areas for the job. (Id. at 80-81; Juhl Dep. at 30-31). A typical

guide covers such areas as strategic thinking, planning and organizing, decision


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making/judgment, initiative, professional expertise, business orientation,

communication skills, teamwork, and leadership. (See, e.g., Gierer Dep. Exs. P-4,

5, 8; Juhl Dep. at 20). The four members of the panel that interviewed Plaintiff and

Mark Balk were Jim Massa, Renee Juhl, David Govaker, and Phyllis Kidder. (Gierer

Dep. at 48). Plaintiff’s interview lasted approximately one hour. (Juhl Dep. at 26).

The other three candidates were interviewed by the other interview team, which was

comprised of the following individuals: Timothy Henning, Barbara Kaplan-Machlis,

Dell South, and Steve Labkoff. (Gierer Dep. at 47). None of the panel members

interviewed all of the candidates. (Juhl Dep. at 24). Dr. Levinson did not participate

in and was not present for any of the in-person interviews. (DSMF ¶¶ 22-24).

Once the interviews were completed, the panel members met with

Dr. Levinson in early February 2008 to discuss the interviews and evaluate the

candidates. Dr. Levinson asked the panel members to assign a “grade” (i.e., A+, A,

A-, B+, etc.) to the finalists that each had interviewed. (Levinson Dep. at 60; Juhl

Dep. at 22-23, 28). Dr. Levinson then converted the grades into numbers (with A+

equaling 9, A equaling 8, etc.) and transferred the scores to a computerized grid that

he had developed. (Levinson Dep. at 61, 70-73; Massa Dep. Ex. P-13). Plaintiff

points to a conflict in the deposition testimony about whether the scale was one to

nine or one to ten, but under either scale or version, it is undisputed that Jon Vlasnik


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and Marcia Wright received the highest scores of the finalists who interviewed for

the EMOS positions. (Massa Dep. at 27-28, Ex. 13; Levinson Dep. at 54-65, 95-96;

Levinson Aff. ¶ 11).

Jon Vlasnik and Marcia Wright received the highest composite scores of 8.3

and 5.8, respectively. Mark Balk received the next highest score of 4.8.

Plaintiff Bradley received a score of 4.5, and David Lawrence received a 3.5. (Massa

Dep. Ex. P-13). Although on the basis of his interviews, Jim Massa, one of

Plaintiff’s interviewers, ranked Plaintiff higher than Balk, Massa testified that after

the other panelists’ scores were tallied, when compared with the other candidates,

Plaintiff scored fourth lowest out of the five finalists. (Massa Dep. at 25).

Based on the results, the panel recommended to Dr. Lonnie Divack, the

department’s recently-hired incoming supervisor, that Vlasnik and Wright be selected

to fill the EMOS positions. (Gierer Dep. at 58; Levinson Aff. ¶ 13). Dr. Divack

interviewed and met with each candidate for about an hour, and decided to hire

Vlasnik and Wright to fill the open EMOS positions in late February 2008. (Divack

Aff. ¶¶ 4-8; Levinson Dep. at 97).

After Plaintiff learned that he had not been selected for either EMOS position,

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on or about July 18, 2008, complaining that he was not


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chosen for the EMOS positions because of age discrimination. (Pl.’s Dep. at 184-85,

Bradley Ex. 8). Plaintiff filed an amended charge with the EEOC on August 25,

2008, reiterating his allegations of age discrimination and adding claims of

retaliation, hostile work environment, and harassment. (Pl.’s Dep. at 186,

Bradley Ex. 9).

Plaintiff’s allegations prompted Pfizer’s human resources department to

investigate Plaintiff’s concerns and claims. (Gierer Dep. at 6, 18-20). As part of its

investigation, Pfizer issued a “legal hold” via e-mail on August 19, 2008 to Plaintiff,

the individuals involved in the interview and selection process, and those individuals

involved in the investigation of Plaintiff’s allegations. (Pl.’s Dep. at 128-29, Bradley

Ex. 5; Gierer Aff. ¶¶ 12-14). The legal hold process included retrieving and

preserving documents and electronic records in the possession of coworkers and

other Pfizer employees. Plaintiff was also required to submit his Pfizer-issued laptop

to a vendor to have the hard drive copied and the information on the laptop preserved.

The laptop was returned to Plaintiff within a few days. (Pl.’s Dep. at 131-35; Bradley

Exs. 5-6; Gierer Aff. ¶ 14).

After Plaintiff filed his EEOC charges, Plaintiff states that he began feeling

“shunned” and “treated differently” by colleagues at national meetings that he

attended and by other Pfizer employees. (Pl.’s Dep. at 152-54, 176-77). Plaintiff


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acknowledged in his deposition, however, that he has not experienced any loss in pay

or benefits as a result of filing his EEOC charges. (Pl.’s Dep. at 157).

The crux of Plaintiff’s complaint is that Defendant discriminated against him

on the basis of age when it failed to select him for either open EMOS position.

(Doc. 1-2 at ¶ 16). Plaintiff also contends that Pfizer harassed him and retaliated

against him for filing the EEOC charges by placing a legal hold on documents and

by copying Plaintiff’s computer, which allegedly contained certain private and

personal information and documents concerning Plaintiff’s medical treatment and

history. (Pl.’s Aff. ¶¶ 6-9).

III. DISCUSSION

A. Failure to Select Plaintiff

Plaintiff claims that Pfizer unlawfully discriminated against him because of his

age when it failed to select him for one of the EMOS positions. (Compl. ¶¶ 9, 14).

Under the ADEA, an employer may not decline to give a position to an employee

because of that individual’s age. 29 U.S.C. § 623(a)(1). A prima facie case of age

discrimination is established if Plaintiff shows that (1) he is a member of the

protected group of persons between the ages of forty and seventy; (2) an adverse

employment action was taken against him, e.g., failure to promote; (3) a substantially

younger person filled the position that he sought; and (4) he was qualified for the


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3 The Supreme Court has not definitively decided whether the evidentiaryframework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), utilized inTitle VII cases, is appropriate in the ADEA context. Gross, 129 S. Ct. at 2349 n.2.Nevertheless, where the parties did not dispute the issue, the Court has assumed,arguendo, that McDonnell Douglas applies. See, e.g., Reeves v. Sanderson PlumbingProds., Inc., 530 U.S. 133, 142 (2000). Because neither Bradley nor Pfizer hasdisputed the issue, this court will assume that the McDonnell Douglas framework isfully applicable here, with the caveat that under § 623(a)(1) and pursuant to Gross, theplaintiff retains the burden of persuasion to establish that age was the “but-for” causeof the employer’s adverse action. Gross, 129 S. Ct. at 2351 (stating that “[a] plaintiffmust prove by a preponderance of the evidence (which may be direct orcircumstantial), that age was the ‘but-for’ cause of the challenged employerdecision.”).

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position for which he was rejected. See Turlington v. Atlanta Gas Light Co., 135

F.3d 1428, 1432 (11th Cir. 1998); Ramsey v. Chrysler First, Inc., 861 F.2d 1541,

1543 (11th Cir. 1988). The United States Supreme Court has also recently clarified

that to establish a disparate-treatment claim under the plain language of the ADEA,

a plaintiff must show that age was the “but-for” cause of the employer’s adverse

decision. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350-51 (2009).

Direct evidence of discriminatory intent will establish a prima facie case, Pace

v. Southern Ry. Sys., 701 F.2d 1383, 1388 (11th Cir. 1983); likewise, Plaintiff may

present sufficient circumstantial evidence to provide a basis for an inference of age

discrimination, see id. at 1387-88.3 Once a prima facie case has been established, the

defendant must come forward with a legitimate, non-discriminatory reason for its

action. Id. The burden is not a heavy one as “the employer need only produce


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admissible evidence which would allow the trier of fact rationally to conclude that

the employment decision had not been motivated by discriminatory animus.” Texas

Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 257 (1981). The Eleventh Circuit

Court of Appeals has held that “a subjective reason is a legally sufficient, legitimate,

nondiscriminatory reason,” Chapman v. AI Transport, 229 F.3d 1012, 1034 (11th Cir.

2000), but, when relying on a subjective reason, the employer has the onus to

“articulate[ ] a clear and reasonably specific factual basis upon which it based its

subjective opinion.” Id.

Plaintiff contends that the “spring chicken” remark allegedly made by

Dr. Levinson to Plaintiff during their telephone screening interview constitutes direct

evidence of discrimination. Direct evidence of discrimination is “evidence that, if

believed, proves the existence of a fact without inference or presumption.” Dixon v.

The Hallmark Cos., Inc., 2010 WL 4983663, at *3 (11th Cir. Dec. 9, 2010)(citing

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)(citation and

quotation marks omitted)). “Under Eleventh Circuit law, only the most blatant

remarks, whose intent could mean nothing other than to discriminate on the basis of

some impermissible factor constitute direct evidence of discrimination.” Id. (internal

quotation marks omitted).


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Generally, direct evidence relates to the actions, statements or bias of the

person making the challenged employment decision. Trotter v. Bd. of Trustees of

Univ. of Ala., 91 F.3d 1449, 1453-54 (11th Cir. 1996), abrogated on other grounds

by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). See, e.g., Caban-Wheeler v.

Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990)(hiring committee member’s statement

that a black person was needed for the position was direct evidence of discrimination

against plaintiff because of her Hispanic origin). Under relevant Eleventh Circuit

authority, unless Dr. Levinson’s remark was directly linked to the decision not to

select Plaintiff to fill one of the EMOS positions, the statement would not constitute

direct evidence of discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228,

277 (1989)(O’Connor, J., concurring)(concluding that “statements by

nondecisionmakers, or statements by decisionmakers unrelated to the decisional

process itself” are not direct evidence); Scott v. Suncoast Beverage Sales, Ltd., 295

F.3d 1223, 1227-28 (11th Cir. 2002); cf. Dixon, 2010 WL 4983663, at *3 (holding

that where plaintiffs’ immediate supervisor, while terminating them, uttered the

comment, “You’re fired, too. You’re too religious,” the comment constituted direct

evidence of discrimination).

Here, the record shows that Dr. Levinson selected (rather than failed to select)

Plaintiff to advance to the in-person panel interviews. The record also indicates that


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4 Although Ms. Wright is younger than Plaintiff, she is over the age of 40 andwas 45 at the time she was selected for one of the EMOS positions. Mr. Vlasnik was38 years old at the time he was selected for the other EMOS position. (DSMF ¶ 21).

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Dr. Levinson was not in charge of making the final decision to hire Vlasnik and

Wright for the EMOS positions. Even if Dr. Levinson did make the “spring chicken”

comment (which he denies), the alleged remark was not directly linked to the

decision not to select Plaintiff to fill one of the EMOS positions. Accordingly, I do

not find that the comment constitutes direct evidence of age discrimination.

In the absence of direct evidence, Plaintiff must rely on indirect evidence for

his prima facie case. Pfizer concedes solely for purposes of this motion for summary

judgment that Plaintiff has made out a prima facie case: Plaintiff was over 40 at the

time he applied for the EMOS positions; he was not selected; and the selected

individuals were both younger than Plaintiff.4 The burden then shifts to Pfizer to

provide evidence of a legitimate, nondiscriminatory reason for the non-selection of

Plaintiff. McDonnell Douglas, 411 U.S. at 802. Defendant’s burden is “one of

production, not proof.” Perryman v. Johnson Prods. Co., Inc., 698 F.2d 1138, 1142

(11th Cir. 1983)(citation omitted).

In order to meet its burden under the second step of the McDonnell Douglas

analysis, Pfizer was required to produce evidence tending to show that it had a

legitimate, nondiscriminatory reason for not selecting Plaintiff for one of the EMOS


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positions. Pfizer’s proffered reason for Plaintiff’s non-selection is that Plaintiff failed

to score among the top two candidates in the in-person interviews for the EMOS

positions.

Plaintiff does not dispute that his final score in the interview and selection

process put him in fourth place or that the two candidates with the highest overall

scores from the interviews were selected. Plaintiff, however, does challenge how

Pfizer ranked and scored the various candidates. Despite the minimal burden

imposed on the employer at this stage of the analysis, Pfizer has offered neither an

explanation nor evidence of how or why the interviewers arrived at the scores they

did. Although there is some deposition testimony in the record that the interview

panelists may have been provided one of several Pfizer interview guides to assist

them in conducting the interviews, Pfizer has not identified the specific interview

guide that was used, nor has Pfizer provided evidence that any of the panelists

actually used the criteria contained in such a guide during their interviews with the

candidates and their subsequent evaluations of the finalists. Nor has Pfizer provided

any evidence of why the interview panelists rated Wright and Vlasnik higher than

Plaintiff. Dr. Levinson’s “grid” contains no notes or comments about Plaintiff’s

interview performance, and Pfizer has not pointed to any deposition testimony or

affidavits by the interview panel members that would shed light on why they scored


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Plaintiff and the other candidates the way they did. Without some indication of the

factual basis or specific reasons for Plaintiff’s interview score, the score says nothing

about whether Plaintiff’s non-selection for the EMOS positions was the product of

intentional age discrimination.

In a remarkably similar case, Alvarado v. Texas Rangers, 492 F.3d 605 (5th

Cir. 2007), a female trooper sued her employer, the Texas Department of Public

Safety (“DPS”), for sex discrimination after she was denied an appointment to the

Texas Rangers Division five times in a row. Id. at 609-10. During her fifth attempt,

the plaintiff was one of 146 applicants for ten available sergeant positions with the

Texas Rangers. The promotion and selection process consisted of two steps:

(1) a written examination covering technical job knowledge and related skills, and

(2) an appearance before a six-member oral examining board. All 146 applicants

were ranked according to their written exam scores, and the top forty scorers,

including the plaintiff, were selected to interview with the board. The plaintiff’s

score on her written exam placed her in a tie for twenty-fifth place. During the

interviews, the board asked the candidates the same core questions, as well as follow-

up and candidate-specific questions. The board members then evaluated each

candidate on a scale of 0 to 500, with the “objective being to identify those who are


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the best qualified and to distinguish them by the rating given.” Id. at 610 (internal

quotation marks omitted).

The interview scores were then averaged, combined with the candidates’

written scores, as well as service and college education points, for a final cumulative

score for each candidate. When the candidates were ranked according to their

cumulative scores, the plaintiff placed twenty-ninth. The top ten candidates, all of

whom were male, were then offered the ten Ranger sergeant positions. Id. at 610-11.

At the summary judgment stage, DPS’s proffered reason for the plaintiff’s non-

selection was that she failed to score among the top ten candidates in the promotion

and selection process. Id. at 616. The plaintiff argued that her employer had offered

no evidence that her interview score (which she claimed was the driving force behind

her overall standing in the promotion and selection process rankings) was determined

by sex-neutral factors or characteristics, and therefore, her employer’s “nonspecific,

content-less explanation” was insufficient to satisfy an employer’s burden of

production. Id. The court agreed, concluding that the decision as to who made the

Rangers was “heavily influenced by the Board members’ subjective evaluations of

the candidates’ performances in the oral interviews,” but the plaintiff’s employer had

failed to offer a sufficiently specific explanation of how or why the interviewers

scored the plaintiff and the other candidates the way they did. Id.


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An employer’s subjective reason for not selecting a candidate, such as a

subjective assessment of the candidate’s performance in an interview, may serve as

a legitimate, nondiscriminatory reason for the candidate’s non-selection. Id.; see also

Chapman, 229 F.3d at 1034 (“It is inconceivable that Congress intended anti-

discrimination statutes to deprive an employer of the ability to rely on important

criteria in its employment decisions merely because those criteria are only capable

of subjective evaluation.”). Such a reason will satisfy the employer’s burden of

production, however, only if the employer articulates a clear and reasonably specific

basis for its subjective assessment. See Burdine, 450 U.S. at 258; Chapman, 229

F.3d at 1034 (“A subjective reason is a legally sufficient, legitimate,

nondiscriminatory reason if the defendant articulates a clear and reasonably specific

factual basis upon which it based its subjective opinion”); EEOC v. Target Corp., 460

F.3d 946, 957-58 (7th Cir. 2006)(agreeing with the Eleventh Circuit that “an

employer must articulate reasonably specific facts that explain how it formed its

[subjective] opinion of the applicant in order to meet its burden under Burdine.”).

Here, Pfizer has failed to articulate any such “reasonably specific facts” as to

the criteria and reasons that informed its decision. Like the employer in Alvarado,

Pfizer has pointed to no evidence in the summary judgment record that clarifies or

expands upon why Plaintiff scored lower than the top two candidates. The only


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information about the successful candidates’ qualifications, cited by Pfizer, are their

scores in the interview and selection process. Without evidence of the candidates’

relative qualifications, the bare assertion that Pfizer hired the two best qualified

candidates is insufficient to satisfy its burden of production, as it does not afford

Plaintiff “a full and fair opportunity to demonstrate pretext.” Burdine, 450 U.S. at

254-56 & n.9 (“[T]he defendant must clearly set forth, through the introduction of

admissible evidence, the reasons for the plaintiff’s rejection.”)(emphasis added); see

also Steger v. Gen. Elec. Co., 318 F.3d 1066, 1076 (11th Cir. 2003)(“A defendant

may not merely state that the employment decision was based on the hiring of the

‘best qualified’ applicant, but must articulate specific reasons for that applicant’s

qualifications, such as seniority, length of service in the same position, personal

characteristics, general education, technical training, experience in comparable work

or any combination of such criteria.”)(internal quotation marks and citation omitted).

“The evidence must include facts which show what the decision-maker knew at the

time when the decision was made.” Id. (citing Walker v. Mortham, 158 F.3d 1177,

1182 n.8 (11th Cir. 1998)). Pfizer’s ostensibly legitimate, nondiscriminatory reason

for Plaintiff’s non-selection is insufficient to satisfy Pfizer’s burden of production.

See, e.g., Target, 460 F.3d at 958-59 (holding that the company’s stated reason for

not hiring the plaintiff – its determination, based upon the plaintiff’s interview, that


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he did not meet the requirements for the position – was insufficient to satisfy its

burden of production because the company failed to articulate what criteria informed

its decision and what requirements the plaintiff did not meet); cf. Bass v. Bd. of

County Comm’rs, 256 F.3d 1095, 1105-06 (11th Cir. 2001)(holding that the

employer met its burden of production because its proffered reason for not hiring the

plaintiff – his poor interview – was supported by reasonably clear and specific

explanations from the interviewers as to what made the plaintiff’s interview “poor”),

abrogation on other grounds recognized by Crawford v. Carroll, 529 F.3d 961 (11th

Cir. 2008); Chapman, 229 F.3d at 1035 (same).

Pfizer’s failure to satisfy its burden of production does not necessarily indicate

that its selection process was inherently discriminatory. Pfizer has simply failed “to

frame the factual issue with sufficient clarity so that the plaintiff will have a full and

fair opportunity to demonstrate pretext.” Burdine, 450 U.S. at 1095. In failing to

proffer evidence of the grounds or criteria it used in the scoring and evaluation of

Plaintiff and the other candidates in the in-person interview and selection process,

Pfizer has failed to proffer a reason for Plaintiff’s non-selection that, if believed,

would allow the jury to conclude that Plaintiff’s non-selection was not the result of

intentional age discrimination.


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Because Pfizer has not satisfied its burden of producing evidence tending to

show that it had a legitimate, nondiscriminatory reason for not selecting Plaintiff for

one of the EMOS positions, the court does not reach the question of whether Plaintiff

could demonstrate pretext or otherwise show that age discrimination was the but-for

reason for his non-selection. Plaintiff’s prima facie case “pretermits summary

judgment dismissal of [his] action, leaving the ultimate question of discriminatory

animus to be determined by the trier of fact.” Patrick v. Ridge, 394 F.3d 311, 316

(5th Cir. 2004). Accordingly, with regard to Plaintiff’s claim of discrimination on

the basis of age, I recommend that Pfizer’s motion for summary judgment be denied.

B. Hostile Work Environment Claim

Plaintiff next alleges in his complaint that Pfizer “wrongfully and intentionally

created a hostile work atmosphere for Plaintiff because of Plaintiff’s age and

Defendant’s intentional discrimination against Plaintiff includes harassment of

Plaintiff because of his age.” (Compl. ¶ 15). To establish a prima facie case of

hostile work environment based on age, Plaintiff must show that (1) he is at least 40

years old; (2) he has been subjected to unwelcome harassment based on his age;

(3) the harassment complained of was “sufficiently severe or pervasive” to alter the

conditions of his employment; and (4) there exists some basis for liability on the part


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5 Although the Eleventh Circuit has not squarely recognized claims for hostilework environment based on age discrimination under the ADEA, the Court hasaffirmed a district court’s denial of a Rule 50 motion for judgment as a matter of lawon a hostile work environment claim based on age. EEOC v. Massey Yardley ChryslerPlymouth, Inc., 117 F.3d 1244, 1249 (11th Cir. 1997) (noting that court need notdecide whether hostile work environment theory applies to ADEA action becauseparties did not raise issue). Assuming that Plaintiff’s claim is actionable, whenevaluating hostile work environment claims based on age, courts apply the samestandards of Title VII claims. Pumpido v. Sch. Bd. Of Miami-Dade County, Fla., 2003WL 23312750, at *9 (S.D. Fla. Nov. 6, 2003).

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of the defendant.5 Harris v. Equifax, Inc., 2006 WL 819757, at *8 (N.D. Ga. Mar. 23,

2006)(citing EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1249

(11th Cir. 1997)).

Plaintiff must show that he was subjected to a workplace that was “permeated

with ‘discriminatory intimidation, ridicule, and insult.’” Harris v. Forklift Sys., 510

U.S. 17, 21 (1993)(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65

(1986)). The discriminatory atmosphere must be “sufficiently severe or pervasive to

alter the conditions of [his] employment and create an abusive working

environment.” Id. (quoting Meritor, 477 U.S. at 67). The “severe and pervasive”

element contains both an objective and a subjective component. To be actionable,

the challenged conduct must create an environment that is both objectively hostile or

abusive (the reasonable person standard) and an environment that the plaintiff himself

perceives to be abusive (the subjective standard). Miller v. Kenworth of Dothan,


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22

Inc., 277 F.3d 1269, 1276 (11th Cir. 2002). The court looks to all the circumstances,

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 the employee’s work performance. Harris, 510 U.S. at

21-22; Miller, 277 F.3d at 1276.

Plaintiff’s hostile work environment claim is without merit. Apart from the

conclusory allegation contained in Plaintiff’s complaint regarding hostile work

environment and harassment, the only harassment identified by Plaintiff in his

deposition or elsewhere was Pfizer’s failure to select Plaintiff for one of the EMOS

positions. (Pl.’s Dep. at 160-61). Pfizer’s failure to give Plaintiff the promotion or

position he desired, alone, does not constitute actionable harassing conduct. Plaintiff

has identified no other instance of harassment and has failed to present any evidence

that Pfizer harassed him or subjected him to a hostile work environment on the basis

of age. Plaintiff’s allegation and testimony do not meet the minimum threshold for

establishing a prima facie case of hostile work environment or actionable harassment

based on age. See Miller, 277 F.3d at 1275; Mendoza v. Borden, Inc., 195 F.3d 1238,

1246 (11th Cir. 1999).


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Because Plaintiff has failed to establish a prima facie case, Pfizer is entitled to

summary judgment in its favor on Plaintiff’s claim of hostile work environment and

unlawful harassment based on age.

C. Retaliation

Plaintiff contends that after he filed his EEOC charges, Pfizer personnel

unlawfully retaliated against him (1) by taking his Pfizer-issued laptop computer

“under false pretenses by telling [Plaintiff] it was attorney-client privilege”; and (2)

by making various complaints about Plaintiff to Pfizer’s legal and compliance

departments. (Pl.’s Dep. at 127-30, 138-41, 145-48; Bradley Ex. 5). In addition,

Plaintiff asserts that he was “shunned” at meetings by coworkers. Plaintiff

acknowledged in his deposition, however, that he was never disciplined by Pfizer and

has not experienced any loss in pay or benefits in connection with any of the alleged

retaliatory acts. (Pl.’s Dep. at 157).

In order to establish a prima facie case of retaliation under the ADEA, Plaintiff

must show (1) that he engaged in statutorily protected conduct; (2) that he suffered

an adverse employment action; and (3) there was a causal connection between the

two. Drago v. Jenne, 453 F.3d 1301, 1307 (11th Cir. 2006)(citing Hairston, 9 F.3d

at 919)(other citations omitted). It is undisputed that by filing charges of

discrimination with the EEOC, Plaintiff engaged in protected activity. Pfizer argues,


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24

however, that Plaintiff has failed to satisfy the second and third prongs of the prima

facie case. I agree.

The second prong requires Plaintiff to show that “a reasonable employee

would have found the challenged action materially adverse, which ... means it well

might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006)(citation and internal quotation marks omitted). With respect to the legal hold

issued by Pfizer to preserve electronic documents and other information related to

Plaintiff’s claim, Plaintiff has admitted that he was familiar with Pfizer’s legal hold

process and that he has received a number of legal hold letters in the past. (Pl.’s Dep.

at 136 [“Whenever we’re in a suit about a drug, ... [e]verybody in the company gets

one.”]). Indeed, had Pfizer not undertaken to preserve records once it was on notice

of Plaintiff’s claims, it could have been subject to sanctions. See Swofford v.

Eslinger, 671 F. Supp. 2d 1274, 1280 (M.D. Fla. 2009)(“Sanctions may be imposed

against a litigant who is on notice that documents and information in its possession

are relevant to litigation [ ] or potential litigation ... and destroys such documents and

information.”); Green Leaf Nursery v. E.I. DuPont De Nemours and Co., 341 F.3d

1292, 1308 (11th Cir. 2003). Thus, while Plaintiff’s EEOC charges may have

prompted the legal hold at issue in this lawsuit, Plaintiff knew that legal holds are


AO 72A(Rev.8/82)

25

routinely issued when legal actions are brought against Pfizer. A reasonable

employee, therefore, would not have found such a common action to be materially

adverse.

Plaintiff further argues that Pfizer’s legal department retaliated against him by

sending him a written communication that in some manner identified the legal hold

process as attorney-client privileged, which he did not believe was accurate.

(Pl.’s Dep. at 138-39). Plaintiff has failed to argue or show, however, how the

communication that he received from the Pfizer legal department regarding

preservation of information on his Pfizer-issued laptop constituted a materially

adverse action. Plaintiff’s allegations and arguments concerning suspected work-

related complaints by Pfizer personnel (and/or other unidentified persons) and feeling

“shunned” are similarly unsupported and unavailing. Other than conclusory,

speculative statements and citations to general case law, Plaintiff has offered no

argument in response to Pfizer’s motion for summary judgment regarding Plaintiff’s

failure to establish a prima facie case of retaliation.

Even if Plaintiff had established that any of the alleged retaliatory acts

constituted adverse employment actions, he has not even attempted to show a causal

connection between any of the alleged retaliatory acts and the filing of his EEOC

charges, or that the reasons Pfizer has given for issuing the legal hold notice and its


AO 72A(Rev.8/82)

26

other alleged conduct are pretextual for unlawful retaliation. Plaintiff has failed to

establish a prima facie case of retaliation under the ADEA. For this reason and the

reasons stated above, Pfizer is entitled to summary judgment on Plaintiff’s ADEA

retaliation claims.

D. Plaintiff’s Invasion of Privacy Claim

Plaintiff alleges in his complaint that Pfizer unlawfully invaded his privacy by

collecting electronic and written data and information about Plaintiff (by copying the

hard drive of Plaintiff’s Pfizer-issued laptop) and then disclosing such confidential

data and information to other Pfizer employees, non-employees and unnamed third

parties. (Compl. ¶ 24). Plaintiff argues in his brief that “under these facts, Pfizer’s

conduct rises to the level of an invasion of privacy tort under Georgia and federal

law.” (Doc. 60, Pl.’s Br., at 20). However, other than a general reference to HIPAA,

29 U.S.C. §§ 1181, et seq., and “Georgia’s constitutional right of privacy” (Doc. 60

at 24), Plaintiff offers no argument, legal authority, or evidence in support of his

invasion of privacy claim. Plaintiff also fails to identify any of the “facts” which

establish an invasion of privacy claim under the cited authority.

Under Georgia law, the tort of “invasion of privacy” encompasses several

distinct torts, including (1) intrusion upon the plaintiff’s seclusion or solitude, or into

his private affairs; and (2) public disclosure of embarrassing private facts about the


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27

plaintiff. Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 704-05, 409 S.E.2d

835, 836 (1991). There are at least three elements necessary to recovery for an

invasion of one’s right of privacy: (a) the disclosure of private facts must be a public

disclosure; (b) the facts disclosed to the public must be private, secluded or secret

facts and not public ones; and (c) the matter made public must be offensive and

objectionable to a reasonable man of ordinary sensibilities under the circumstances.

Haughton v. Canning, 287 Ga. App. 28, 29, 650 S.E.2d 718, 721 (2007). As a

general rule, Georgia courts recognize that the right of privacy is waived by one who

brings an action against another for tort damages, and the defendant has the right to

conduct a reasonable investigation of the plaintiff in order to ascertain the validity of

the plaintiff’s claim. Ellenberg v. Pinkerton’s, Inc., 125 Ga. App. 648, 651, 188

S.E.2d 911, 914 (1972).

Here, Pfizer’s alleged collection of data and information from the laptop that

the company provided to Plaintiff was prompted by and directly related to Plaintiff’s

filing of EEOC charges of discrimination. (Pl.’s Dep. at 128-29; Gierer Aff. ¶¶ 12-

14). The purpose of the collection was to preserve and protect information that may

be relevant to Plaintiff’s legal claims. Plaintiff acknowledged in his deposition that

pursuant to Pfizer policy, Plaintiff had no expectation of personal privacy in the use

of Pfizer’s information systems, including his Pfizer-issued laptop. (Pl.’s Dep. at


AO 72A(Rev.8/82)

28

232-33; Ex. 15, 4.1.1.1). In addition, despite Plaintiff’s allegation that Pfizer

disclosed confidential data and information to others, Plaintiff conceded in his

deposition that he had no knowledge of any such disclosure by Pfizer. (Pl.’s Dep. at

183-84). Under the legal authority cited by Plaintiff, Plaintiff has not alleged

sufficient facts to state a valid cause of action for invasion of privacy under either

federal or state law, nor has he presented sufficient evidence upon which a fact finder

could reasonably find in his favor. Accordingly, Pfizer is entitled to summary

judgment on Plaintiff’s invasion of privacy claim.

E. Intentional Infliction of Emotional Distress

Plaintiff has also failed to allege or show the underlying facts necessary to

establish the elements of an intentional infliction of emotional distress claim. Under

Georgia law, a plaintiff must establish (1) intentional or reckless conduct; (2) extreme

and outrageous conduct; (3) a causal connection between the alleged conduct and the

emotional distress; and (4) severe emotional injury. Jarrard v. United Parcel Serv.,

Inc., 242 Ga. App. 58, 59, 529 S.E.2d 144, 146 (2000); Bridges v. Winn-Dixie

Atlanta, Inc., 176 Ga. App. 227, 230, 335 S.E.2d 445, 448 (1985). The required

standard for intentional infliction of emotional distress is stringent and difficult to

establish. Bridges, 176 Ga. App. at 229, 335 S.E.2d at 447; see also Moses v.

Prudential Ins. Co. of Am., 187 Ga. App. 222, 224, 369 S.E.2d 541, 543


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(1988)(intentional infliction of emotional distress is hard to establish because of “the

court’s justifiable concern that causes of action grounded upon emotional distress

may give rise to fictitious, inflated, or trivial claims unless properly circumscribed”).

This tort is reserved for only the most egregious behavior for which plaintiffs

“bear a heavy burden” in establishing. Mears v. Gulfstream Aerospace Corp., 225

Ga. App. 636, 640, 484 S.E.2d 659, 664 (1997). Whether this burden has been met

is a question of law for the court to decide. Id. Conduct is “extreme and outrageous”

only when it is “so outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Yarborough v. SAS Sys., Inc., 204 Ga. App.

428, 429, 419 S.E.2d 507, 509 (1992). Mere insults, indignities, threats, annoyances,

petty oppressions, or the fact the plaintiff was insulted or offended are insufficient.

Perkins-Carrillo v. Systemax, Inc., 2006 WL 1553957, at *19 (N.D. Ga. May 26,

2006). “The law intervenes only where the distress inflicted is so severe that no

reasonable man could be expected to endure it.” Bridges, 176 Ga. App. at 230, 335

S.E.2d at 448. Even termination of employment or threats of termination are

insufficient to establish a claim for intentional infliction of emotional distress. See

Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 243, 503 S.E.2d 877, 880

(1998).


AO 72A(Rev.8/82)

30

Here, Plaintiff contends that he was subjected to intentional infliction of

emotional distress when Pfizer failed to promote him to one of the EMOS positions

and Dr. Levinson allegedly falsely reported the scores of the individuals ultimately

selected for the EMOS positions. Plaintiff, however, has provided no admissible

evidence, legal authority, or plausible argument to support his claim. Accordingly,

I recommend that Pfizer’s motion for summary judgment be granted with respect to

Plaintiff’s state law claim of intentional infliction of emotional distress.

F. Pfizer’s Motion for Attorneys’ Fees and Costs

In conjunction with its motion for summary judgment, Defendant Pfizer moves

the court for an award of attorneys’ fees and costs for being forced to defend against

what it characterizes as Plaintiff’s meritless claims. (Doc. 54-1 at 28-30). Pfizer

argues that Plaintiff has adduced no probative evidence whatsoever to support any

of his claims in this lawsuit, yet he has continued to litigate this case despite the total

lack of facts, legal authority, and evidence to support his claims.

Under the ADEA, a district court may award attorney’s fees to a prevailing

ADEA defendant only upon a finding that the plaintiff litigated in bad faith.

Turlington, 135 F.3d at 1437-38. Bad faith may be found where a party has acted

“vexatiously, wantonly, or for oppressive reasons.” Id. Under Eleventh Circuit

precedent, “the determination of bad faith is a complex inquiry that should be


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31

conducted initially by the district court” to decide whether the plaintiff “litigated in

bad faith and to substantiate its determination with appropriate findings.” Id. at 1438

& n.20.

Given this court’s recommendation with regard to Plaintiff’s age

discrimination claim, I do not find that an award of attorneys’ fees and costs is

appropriate at this time. Accordingly, I RECOMMEND that Pfizer’s motion for an

award of attorneys’ fees and costs be DENIED.

IV. CONCLUSION

For the reasons stated above, I RECOMMEND that Pfizer’s Motion for

Summary Judgment and for Attorneys’ Fees and Costs (Doc. 54) be GRANTED IN

PART and DENIED IN PART. I RECOMMEND that Pfizer’s motion for

summary judgment (Doc. 54) be DENIED as to Plaintiff’s claim of age

discrimination in violation of the ADEA. I RECOMMEND that Pfizer’s motion for

summary judgment (Doc. 54) be GRANTED as to all of Plaintiff’s remaining claims,

including hostile work environment and harassment, retaliation, invasion of privacy,

and intentional infliction of emotional distress. I RECOMMEND that Pfizer’s

motion for attorneys’ fees and costs (Doc. 54) be DENIED.


AO 72A(Rev.8/82)

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IT IS SO RECOMMENDED, this 20th day of January, 2011.

GERRILYN G. BRILLUNITED STATES MAGISTRATE JUDGE


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