Stimson v. Stryker Sales Corp.
Stimson v. Stryker Sales Corp.
2019 WL 2240444 (N.D. Ga. 2019)
January 24, 2019
King, Janet F., United States Magistrate Judge
Summary
The ESI of the text exchange between Plaintiff and Mr. Runyan was stored on Mr. Runyan's phone and provided to Defendant in March 2016. Plaintiff also provided the same ESI from his previous Samsung Note 4 cell phone on an “.xml” file. The court found that Rule 37(e) does not apply in this case and denied Defendant's motion for discovery sanctions.
Additional Decisions
Nate STIMSON, Plaintiff,
v.
STRYKER SALES CORPORATION, Defendant
v.
STRYKER SALES CORPORATION, Defendant
CIVIL ACTION FILE NO. 1:17-CV-00872-WMR-JFK
United States District Court, N.D. Georgia, Atlanta Division
Signed January 24, 2019
Counsel
Edward D. Buckley, Nicholas Prince Smith, Buckley Beal, LLP, Atlanta, GA, for Plaintiff.Catherine S. Ryan, Pro Hac Vice, Christopher Bouriat, James F. Glunt, Reed Smith, Pittsburgh, PA, Edward Patrick Cadagin, Henry M. Perlowski, Arnall Golden Gregory LLP, Atlanta, GA, for Defendant.
King, Janet F., United States Magistrate Judge
FINAL REPORT AND RECOMMENDATION
*1 Plaintiff Nate Stimson filed the above-styled employment discrimination action on March 9, 2017. [Doc. 1]. Plaintiff Stimson's federal claims against Defendant Stryker Sales Corporation are based on Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. [Id.]. Plaintiff alleges that Defendant Stryker retaliated against him in violation of Title VII by terminating his employment. [Id., Count I]. Plaintiff also alleges that Defendant violated the ADEA by terminating his employment on the basis of his age. [Id., Count II]. In addition to Plaintiff's federal claims, he asserts a state law claim against Defendant for defamation. [Id., Count III]. Defendant Stryker has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 on Plaintiff's claims based upon the pleadings, statements of material facts, exhibits, and discovery materials submitted to the court. [Doc. 73].
I. Facts
When evaluating the merits of a motion for summary judgment, the court must “view the evidence and all factual inferences raised by it in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-moving party.” Comer v. City of Palm Bay, Florida, 265 F.3d 1186, 1192 (11th Cir. 2001). However, mere conclusions and unsupported statements by the party opposing summary judgment are insufficient to avoid summary judgment. See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). In accordance with the foregoing principles, the following facts are deemed to be true for the limited purpose of evaluating Defendant's motion [Doc. 73] for summary judgment.
On May 1, 2004, Defendant Stryker Sales Corporation hired Plaintiff Nate Stimson as an Associate Sales Representative in Defendant's Endoscopydivision. [Defendant's Statement of Material Facts (“DSMF”) ¶ 1; Plaintiff's Deposition (“Pla. Dep.”) at 121]. A few days before, on April 28, 2004, Plaintiff Stimson signed an acknowledgment form stating that he had received and reviewed a copy of the Stryker Endoscopy Employee Handbook and the Stryker Corporation Code of Conduct. [DSMF ¶ 2]. Plaintiff signed a form affirming his understanding that compliance with Defendant Stryker's policies, including the Employee Handbook and the Code of Conduct, was essential to his continued employment with Defendant. [DSMF ¶ 3]. The “Rules of Conduct” section of the Employee Handbook states, inter alia, the following: “While it is not the intent of the [Endoscopy] Division to punish employees, but rather to correct unacceptable situations, the following actions will result in corrective action, which may include immediate suspension without pay or termination: ... Failure to cooperate fully in any investigation by the Company.” [Plaintiff's Statement of Material Facts (“PSMF”) ¶¶ 4, 5; Doc. 73-3 at 13-14]. The Handbook also states, “Don't Lie, Cheat, or Steal.” [PSMF ¶ 4; Doc. 73-3 at 14].
*2 In December 2004, Defendant Stryker promoted Plaintiff Stimson from Associate Sales Representative to Sales Representative. [DSMF ¶ 5; Pla. Dep. at 121]. As a Sales Representative, Plaintiff received compensation on commission, which varied based upon the percentage of Defendant's equipment or services that Plaintiff sold. [DSMF ¶ 6]. Plaintiff's largest customer account was the WellStar Health System, of which WellStar Kennestone Hospital was a part. [DSMF ¶ 8]. During the period of time relevant to Plaintiff's claims, Jason C. Smith was Plaintiff's immediate supervisor. [DSMF ¶ 7].
Defendant Stryker employed Jaymes (or “Jay”) Runyan[1], Ryan Schmidt, and Eric Pugh as ProCare Specialists. In that role, these Specialists were trained to use, maintain, and repair Stryker medical device equipment and supported the Sales Representatives at the Hospital. [DSMF ¶ 9]. ProCare Specialists also support the hospital staff during procedures that use Stryker equipment and help in the hospital's evaluation of new Stryker equipment or technology. Their job is integral to the procedures being performed. [PSMF ¶ 6].
Stryker ProCare Specialist Jaymes Runyan worked on a regular basis at WellStar Kennestone Hospital. [Adams Dep. at 13-14; Schmidt Dep. at 23]. Denise Adams, a nurse and clinical coordinator employed by WellStar Kennestone Hospital, testified that she worked daily with Mr. Runyan and thought of him as a coworker. [Adams Dep. at 10-16; PSMF ¶ 8]. The ProCare Specialists wore WellStar scrubs, carried WellStar identification that gave them access to the operating room (“OR”) and employee locker rooms, and did not wear anything that would indicate they were not WellStar employees. [Adams Dep. at 39-43; PSMF ¶ 9]. Plaintiff Stimson, as a Sales Representative, would only go to Kennestone Hospital once or twice per month. [PSMF ¶ 10].
When working as ProCare Specialists, Runyan, Schmidt, and Pugh considered Plaintiff to be their unofficial supervisor and they would perform tasks as requested by Plaintiff. [DSMF ¶ 10]. Plaintiff had no input into performance reviews or evaluations for these ProCare Specialists. [DSMF ¶ 11]. Plaintiff communicated with Mr. Runyan in-person at the Hospital, by text message, and by phone. [DSMF ¶ 12]. Plaintiff interacted physically with Mr. Runyan, engaging in “arm-checking,” “horseplay,” and “cutting up.” [DSMF ¶ 13]. Mr. Schmidt was asked and testified to the following:
Q. Do you know if [Plaintiff] ever shoved Mr. Runyan in an active OR?
A. I wouldn't say shoved. I would say did the ... arm check, yeah....
Q. Do you know if Mr. Runyan ever complained to you about almost losing his balance and falling into a sterile field?
A. No.
Q. When you saw [Plaintiff] arm check Mr. Runyan, did Mr. Runyan ever flinch?
A. Usually.
Q. Do you know why?
A. He's a lot bigger than Jay [Runyan].
Q. But to you, it was playful horseplay?
A. Yes.
[Schmidt Dep. at 68]. Mr. Schmidt also testified that Plaintiff joked with Mr. Runyan about Runyan's fictitious homosexual boyfriend named “Rodrigo.” [Schmidt Dep. at 69-71]. According to Mr. Schmidt, Plaintiff frequently “insinuat[ed] that Rodrigo was [Mr. Runyan's] boyfriend or [said] [‘]were you with Rodrigo last night[?’], those things.” [Id. at 70]. Mr. Schmidt also testified that Mr. Runyan played along with the joke and said that he was with Rodrigo. [Id.].
On December 11, 2012, Mr. Runyan contacted Defendant Stryker's Human Resources (“HR”) Manager Meredith Gregory. Ms. Gregory noted that, although Mr. Runyan did not want Plaintiff to get in trouble or jeopardize his job or relationship with Plaintiff, Mr. Runyan was concerned and complained about Plaintiff's behavior to Ms. Gregory. [DSMF ¶ 18]. Ms. Gregory noted that Mr. Runyan reported physical bullying (“slams [Mr. Runyan] up against walls”) and unwelcome jokes by Plaintiff about Mr. Runyan's sexuality (“on-going joke about [Mr. Runyan] being gay”), including references to a fictitious homosexual boyfriend named “Rodrigo.” [DSMF ¶ 19]. Ms. Gregory assured Mr. Runyan that he should not have to deal with bullying or harassment in the work environment and “agreed to [let Mr. Runyan] try first to have a conversation with [Plaintiff] about how these things are making him feel but then for [Mr. Runyan] to follow up with [Ms. Gregory] on how the conversation [went].” [DSMF ¶ 20].
*3 Three days later, on December 14, 2012, Mr. Runyan reported to Ms. Gregory that Mr. Runyan's brother had addressed the situation with Plaintiff and that Mr. Runyan felt that the issue was resolved. Mr. Runyan also reported to Ms. Gregory that Plaintiff's text message conversations had been positive and respectful. [DSMF ¶ 21]. Ms. Gregory told Mr. Runyan that “at the instant any of this behavior should start up again, that [Mr. Runyan] needs to call [Ms. Gregory] right away.” [DSMF ¶ 22]. Plaintiff, however, testified that Mr. Runyan's brother never informed Plaintiff that Mr. Runyan had any concerns or objections about Plaintiff. [Plaintiff's Declaration (“Pla. Dec.”) ¶ 6]. Plaintiff also testified that in 2012, Defendant Stryker never informed him that Mr. Runyan had raised concerns about Plaintiff. [Id. ¶ 5].
In Kennestone Hospital, there is an office where nurses regularly change clothes. [Adams Dep. at 16-19; Doc. 73-3 at 91]. Denise Adams, a nurse and clinical coordinator at Kennestone, testified that the majority of people who worked in the hospital knew that nurses/coordinators regularly changed clothes in the office. [Adams Dep. at 19]. The office door has a window that is covered with paper, but there is a slit in the paper. [Doc. 73-3 at 91]. On one occasion in early 2016, Mr. Runyan looked into the office and saw Ms. Adams as she was undressing. [Adams Dep. at 16-19; Doc. 73-3 at 89, 91; DSMF ¶ 24; PSMF ¶ 11]. Mr. Runyan watched Ms. Adams as she took her shirt off. [Adams Dep. at 16-19; Doc. 73-3 at 89, 91]. Ms. Adams testified that at some point after this in February 2016, she became aware that Mr. Runyan had seen her undressing because he told her. [Adams Dep. at 17-18]. Ms. Adams was asked and testified to the following:
Q. And what did – what did Jay [Runyan] say to you?
A. He just told me that he saw me undressing and that he didn't know if he should stay and watch or if he shouldn't. And he said that he decided to stay because he liked what he saw.
Q. And how did you react?
A. I was shocked. Honestly, I don't think I said anything. I didn't know how to respond. I really didn't know how to respond, so I just kind of hooked it with [“]go away.[”]
[Adams Dep. at 18]. Ms. Adams testified that over the next two weeks, Mr. Runyan approached her three or more times and repeated his comment about how “he liked what he saw, so he decided to stay and watch.” [Adams Dep. at 21-22; PSMF ¶ 13].
Plaintiff Nate Stimson testified that he first learned of these events when Jaymes Runyan himself informed Plaintiff that Mr. Runyan had watched Denise Adams undress. [Pla. Dep. at 169; PSMF ¶ 14]. Ms. Adams subsequently approached Plaintiff Stimson and complained about Mr. Runyan's conduct. [Pla. Dep. at 169; PSMF ¶ 15]. Plaintiff testified:
Denise [Adams] came to me and said, “Your boy [Mr. Runyan] keeps telling me he watched me undress and he likes what he saw. And I want it to stop.” And I knew it was true because Jay [Runyan] had already told me that he had watched Denise undress.
[Pla. Dep. at 169]. On February 11, 2016, Plaintiff reported Mr. Runyan's actions to Rebecka Solar, Mr. Runyan's supervisor. [PSMF ¶ 16; DSMF ¶ 23]. Plaintiff testified, “As a responsibility to [Ms. Adams], the customer, et cetera, it was – the only choice I had was to report [Mr. Runyan] because [Ms. Adams] felt threatened and she was not comfortable at work with him there.” [Pla. Dep. at 169].
Shortly after Plaintiff reported Mr. Runyan to Rebecka Solar, Ms. Solar passed Plaintiff's report along to Ali Schultz, Defendant Stryker's Associate HR Manager. [DSMF ¶¶ 24, 26; Doc. 73-3 at 89]. Ms. Schultz then contacted Plaintiff and interviewed him. [Id.]. Plaintiff repeated the allegation regarding Mr. Runyan's action with Ms. Schultz. [Id.]. Ms. Schultz wrote in her notes that Plaintiff reported that it was a well-known fact that all nurses changed in the office in question–particularly at 3 p.m. during a shift change, that the window is taped with paper for this reason, and that Plaintiff also had looked through this office window in the past to find a nurse. [DSMF ¶ 24]. However, Plaintiff testified that he never looked through the door window at 3 p.m. because it was common knowledge that this was the only time during the day that nurses changed clothes in the office. [Pla. Dep. at 182-84]. Ms. Schultz noted that Plaintiff stated that he was “worried about retaliation from [Mr. Runyan] especially since there is a lot of business [on the WellStar account].” [DSMF ¶ 25]. Ms. Schultz discussed Defendant Stryker's non-retaliation policy and assured Plaintiff that the investigation would be sensitive to Plaintiff's business at Kennestone Hospital where the alleged incident occurred. [DSMF ¶ 26]. Defendant Stryker initiated an internal investigation, case number ENDO-PC6380, into Plaintiff's complaint regarding Mr. Runyan. [DSMF ¶ 27].
*4 On February 16, 2016, Ms. Schultz called Mr. Runyan to discuss his alleged behavior. [PSMF ¶ 18; DSMF ¶ 32]. Ms. Schultz explained to Mr. Runyan that there was an allegation that he had spied on Ms. Adams undressing and approached her with salacious comments. [PSMF ¶ 18]. Ms. Schultz's notes of her interview with Mr. Runyan provide the following, in part:
[Mr. Runyan] said he went to the nurses' office to see if [Ms. Adams] was there and saw her taking her top off. He said his timing was bad and that he felt extremely awkward because she was facing him. He said that since she was facing him he thought she had seen him and thought it best to address the elephant in the room so he told her about it. [Mr. Runyan] said that they have that type of relationship where they have open communication so [he] didn't think it would be a big deal to address it.... He said that [Ms. Adams] had joked with him about being his girlfriend when he told the hospital staff in the break room last year that he was going on a trip to Italy. Denise said she would “put out” if he would take her to Italy and after that conversation she continued to joke about being his girlfriend. [Mr. Runyan] said he may have even joked about being her boyfriend to try and appease her since she was the customer.
[Doc. 73-3 at 91-92].[2] Mr. Runyan also told Ms. Schultz, “I am shocked it is being brought up at this level. I'm convinced the customer didn't bring this to you, I am a morally and ethically sound person ... and I really don't think our client has brought this to you.” [PSMF ¶ 19; Doc. 73-3 at 92]. Ms. Schultz encouraged Mr. Runyan to further discuss his concerns with Defendant Stryker. [DSMF ¶ 37].
Two days later, on February 18, 2016, Rebecka Solar, Mr. Runyan's supervisor, informed Ms. Schultz that Ms. Adams had asked Plaintiff for an update. [PSMF ¶ 20]. Ms. Solar also told Ms. Schultz that Ms. Adams had expressed her discomfort with having to continue to work with Mr. Runyan. [Id.]. In addition, Ms. Solar asked Ms. Schultz if Ms. Solar could transfer Mr. Runyan to a different account, but Ms. Schultz refused the request. [PSMF ¶ 22].
The next day, February 19, 2016, Mr. Runyan sent an email to Ms. Schultz and Kira Swain, Defendant Stryker's Director of HR Compliance, saying that he had surmised that it was Plaintiff Nate Stimson who had reported Mr. Runyan's alleged sexual harassment of Ms. Adams. [PSMF ¶ 23; DSMF ¶¶ 28, 29; Doc. 73-3 at 56-57; Swain Dep. at 17]. Mr. Runyan also stated that he wanted to give “context” to his relationship with Plaintiff and alleged that he had suffered “consistent, excessive, and extreme harassment” over the last four years at the hands of Plaintiff. [PSMF ¶ 23; DSMF ¶ 30; Doc. 73-3 at 56-57]. In the email, Mr. Runyan alleged two events: one where Plaintiff shoved him against a wall, resulting in a cut to his arm; and the other where Plaintiff shoved him in the OR to the point where he almost fell into a sterile field. [PSMF ¶ 24; DSMF ¶ 30]. Mr. Runyan claimed that “Wellstar Kennestone Clinical Coordinator Jenny Jones witnessed [Plaintiff] shove me into a wall with his forearm, resulting in a cut on my arm, which she photographed with her cell phone.” [Doc. 73-3 at 56; PSMF ¶ 25]. Mr. Runyan also alleged the following in the email:
*5 [Plaintiff] has stated to team members and customers in the operating room that I am a homosexual and says so in a negative light. He has even gone so far as to say I have a male lover that goes by the name “Rodrigo.” [Plaintiff] references “Rodrigo” and fabricates various sexual experiences between “Rodrigo” and myself consistently.... Over the past 4 years I have felt threatened and intimidated by [Plaintiff]. I never feel safe around him, and I am always expecting him to attack me physically, as well as my sexuality in front of my peers, as he has done countless times.
[Doc. 73-3 at 56; DSMF ¶ 30].
On February 22, 2016, three days after Jaymes Runyan sent his email to Ms. Schultz and Ms. Swain, Defendant Stryker initiated an internal investigation into Mr. Runyan's complaint against Plaintiff Stimson. [DSMF ¶ 31]. Stryker HR employees Swain, Schultz, and Sarah Hartz had been investigating the allegations about Mr. Runyan, and they were also the primary players in the investigation about Plaintiff. [PSMF ¶ 27]. While Defendant Stryker created two different investigation files in their Ethics Point software for Plaintiff and Mr. Runyan, they linked the two investigations. [PSMF ¶ 28]. Statements taken in one investigation were used for the other and vice-versa. [PSMF ¶ 29]. Sarah Hartz, testifying as the corporate representative of Defendant Stryker, testified, “We didn't see logistically the point of calling [Plaintiff] and saying I'm going to have some questions for you about [Mr. Runyan]. Okay, I'm going to call you back in two minutes and ask you some questions about you.” [PSMF ¶ 30].
On February 22, 2016, before there had been any interview of nurse Denise Adams, HR Director of Compliance Kira Swain stated that Mr. Runyan seemed credible and wrote, “[Mr. Runyan's] testimony did not convince us that the incident [involving Mr. Runyan and Ms. Adams] or aftermath had taken place as reported.” [30(b)(6) Dep., Ex. 4 at Bates No. 241; PSMF ¶ 31]. Ms. Swain interviewed Plaintiff's manager, Jason Smith, who denied that Plaintiff was physically aggressive. [PSMF ¶ 32]. Eric Pugh, a ProCare Specialist who had worked with Mr. Runyan at Kennestone in 2012, denied that either he or Mr. Runyan had been physically touched by Plaintiff, stating that Plaintiff “never put his hand on me, or [Mr. Runyan] to my knowledge.” [PSMF ¶ 34].
Rebecka Solar, Mr. Runyan's supervisor, testified that an employee from Defendant Stryker's HR Department informed her that a complaint had been raised against Plaintiff and that the HR employee asked Ms. Solar if she had any issues with Plaintiff. [Solar Dec. ¶ 14]. Ms. Solar also testified, “From that point forward, HR aggressively pursued the allegations against [Plaintiff] and seemed to stop investigating the complaint about [Mr. Runyan's] behavior with Denise Adams.” [Id.]. In addition, Ms. Solar testified, “HR indicated to me that they did not want [Mr. Runyan] to feel retaliated against, and that was the reason Stryker HR gave me for refusing my request that I be able to remove [Mr. Runyan] from WellStar Kennestone.” [Id.].
On February 23, 2016, Olivia Cream, Defendant Stryker's HR Manager, interviewed Scott Smythe, Director of Sales, who stated that Plaintiff was a top sales performer in the region. [DSMF ¶ 38]. Two days later, ProCare Specialist Ryan Schmidt, who worked for Defendant in Kennestone Hospital, reported to HR Director of Compliance Kira Swain during an interview that the peeping incident was “blown out of proportion.” [DSMF ¶ 39]. Mr. Schmidt told Ms. Swain that the office where Ms. Adams changed her clothes on the day of the incident was in a main hallway, that he did not know that nurses changed there, and that there is a separate locker room area. [DSMF ¶ 40]. Mr. Schmidt also told Ms. Swain that Plaintiff would frequently use the term “Rodrigo” and insinuate that Mr. Runyan had a homosexual boyfriend by that name. [DSMF ¶ 41].
*6 Jason Smith, Plaintiff's manager, interviewed nurse Denise Adams and confirmed that her account of events matched what was originally reported. [PSMF ¶ 36]. Mr. Smith interviewed Ms. Adams in person about Mr. Runyan's alleged sexual harassment and found her to be credible. [PSMF ¶ 37]. On February 26, 2016, Mr. Smith emailed his supervisors Scott Smythe and Paul Glynn, Vice President of Sales, and expressed his frustration that Mr. Runyan had not been removed from Kennestone Hospital even though Mr. Smith had verified the incident with Ms. Adams. [PSMF ¶ 38; Glenn Dep. at 14].
On February 29, 2016, Defendant Stryker decided to remove Plaintiff Stimson from Kennestone Hospital. [PSMF ¶ 39]. Sarah Hartz, Defendant Stryker's Compliance Officer, communicated this decision to Plaintiff on March 2, 2016. [PSMF ¶ 40]. Ms. Hartz informed Plaintiff that he was being removed from Kennestone Hospital “due to some very serious workplace misconduct allegations” and that he was not to have any contact with any employees at the facility. [Id.; 30(b)(6) Dep., Ex. 4 at Bates No. 251]. Ms. Hartz told Plaintiff that Defendant was not ready to inform him about the allegations that had been made against him. [30(b)(6) Dep., Ex. 4 at Bates No. 251; PSMF ¶ 41].
HR Director of Compliance Kira Swain interviewed Eric Pugh, a former ProCare Specialist, on March 7, 2016. Mr. Pugh reported to Ms. Swain that he no longer worked at Kennestone Hospital and had not for over four years, but Mr. Pugh recalled Plaintiff making comments about Mr. Runyan's sexuality and referencing “Rodrigo.” [DSMF ¶ 42]. Mr. Pugh told Ms. Swain that Plaintiff's references to “Rodrigo” were “along the lines of [Mr. Runyan] being homosexual” and that Plaintiff's references to “Rodrigo” stood out. [DSMF ¶ 43]. Mr. Pugh also stated that Mr. Runyan “absolutely” complained that he did not like Plaintiff's comments about Mr. Runyan's alleged homosexuality and “Rodrigo” and that these comments were absolutely “not acceptable” at work. [DSMF ¶ 44; 30(b)(6) Dep., Ex. 4 at Bates No. 180]. In addition, Mr. Pugh informed Ms. Swain, “I don't think [Plaintiff] did it in a malicious way, something [Plaintiff] may have thought was funny.” [30(b)(6) Dep., Ex. 4 at Bates No. 180].
On March 10, 2016, Ms. Swain and Compliance Officer Sarah Hartz called Plaintiff from a San Jose, California “408” area code and conducted a phone interview of Plaintiff while he was in Florida on vacation. [PSMF ¶ 42; DSMF ¶ 45]. Plaintiff was on the way to dinner with his family, but he pulled over so that he could speak to Ms. Hartz and Ms. Swain. [PSMF ¶ 43]. Ms. Hartz began the interview by reminding Plaintiff of the importance of honesty and truthfulness in answering questions. [DSMF ¶ 46]. Ms. Hartz and Ms. Swain spent at least half of the call discussing Jaymes Runyan's peeping on Ms. Adams and his subsequent comments to her. [PSMF ¶ 44].
During the conversation, Ms. Hartz and Ms. Swain suddenly switched gears and began asking seemingly random questions about Plaintiff's relationship with Mr. Runyan. [PSMF ¶ 45]. Ms. Hartz and Ms. Swain did not inform Plaintiff of the allegations and, instead, kept him in the dark as they asked their questions. [PSMF ¶ 46]. Plaintiff repeated numerous times that he considered Mr. Runyan's allegations against him as a form of retaliation. [PSMF ¶ 47]. Ms. Hartz asked Plaintiff if he had any recollection of referring to “Rodrigo” in his interactions with Mr. Runyan. At the time, Plaintiff was caught off guard and did not remember joking with Mr. Runyan about using the word “Rodrigo.” [PSMF ¶ 50]. According to Ms. Hartz, Plaintiff stated that he uses many nicknames and code names, that he had no recollection of a “Rodrigo,” and that he had “no bearing or basis” to use that name with Mr. Runyan. [30(b)(6) Dep., Ex. 4 at Bates No. 183; Hartz Dep. at 109; DSMF ¶ 47]. However, Plaintiff stated that he might have used the word “Rodrigo” with Mr. Runyan and that he used lots of names with Mr. Runyan. [PSMF ¶¶ 48, 49]. Ms. Hartz testified that she told Plaintiff that Stryker had multiple sources who had corroborated that Plaintiff knows what “Rodrigo” refers to and that she asked if Plaintiff was sure of his answer. According to Ms. Hartz, Plaintiff stated that he recalled Mr. Runyan using the term “Rodrigo.” [Hartz Dep. at 111; 30(b)(6) Dep., Ex. 4 at Bates No. 183; DSMF ¶ 48].
*7 On March 11, 2016, one month after the report of Mr. Runyan's harassment of nurse Denise Adams, HR Manager Alaina Whitaker[3] called Ms. Adams to interview her. [PSMF ¶ 51]. Ms. Adams described to Ms. Whitaker about the “peeping incident” and how Mr. Runyan told Ms. Adams that “he liked what he saw.” [30(b)(6) Dep., Ex. 4 at Bates No. 185]. Ms. Adams also told Ms. Whitaker about how Ms. Adams had mentioned Mr. Runyan's actions to Plaintiff Stimson and that Plaintiff said that he had to talk to HR. [Id.]. Ms. Whitaker asked Ms. Adams if she would be willing to discuss the incident with her alleged harasser, Mr. Runyan. In response, Ms. Adams said, “I would prefer not to talk to [Mr. Runyan].... I have worked here for 14 years. I think it is the best thing for him to be somewhere else.” [30(b)(6) Dep., Ex. 4 at Bates No. 185-86].
Ms. Whitaker also interviewed Kennestone Clinical Coordinator Jenny Jones. [PSMF ¶ 54]. As previously noted, Mr. Runyan alleged that Ms. Jones witnessed Plaintiff shoving Mr. Runyan into a wall, which resulted in a cut on Mr. Runyan's arm. Mr. Runyan also alleged that Ms. Jones photographed the cut with her cell phone. [Doc. 73-3 at 56; PSMF ¶ 25]. However, during Ms. Jones' interview with Ms. Whitaker, Ms. Jones denied taking a picture of a cut on Mr. Runyan's arm and did not recall anyone ever getting hurt. [PSMF ¶ 54].
On March 14, 2016, Kira Swain, Defendant Stryker's Director of HR Compliance, emailed Mr. Runyan that he “had mentioned a reference to Rodrigo via text message between [Mr. Runyan] and [Plaintiff].” [Hartz Dep., Ex. 20; Doc. 89-3]. Ms. Swain then asked Mr. Runyan to send her a copy of the text. [Id.]. Mr. Runyan responded by saying that he did “not recall mentioning a reference to Rodrigo via text message” but that he would go back through his phone backup to see if he could find anything. [Id.]. Two days later, on March 16, 2016, Mr. Runyan sent Ms. Swain an email allegedly containing every text message that he found on his phone where “Rodrigo” was referenced. [Doc. 73-3 at 27-45; PSMF ¶ 57; DSMF ¶ 53]. Both Mr. Runyan and Plaintiff used the term “Rodrigo.” [Id.]. All but one of the text exchanges that used “Rodrigo” occurred in 2012, and Mr. Runyan used “Rodrigo” six of nine times. [PSMF ¶ 58]. The text exchanges[4]indicate that Mr. Runyan wrote the following: (1) “Yeah it's a good thing I can fit into youth sizes. And that my life motto is ‘love me tender.’ Rodrigo loves it.”; (2) “Nah ill wait until she's in my bed later on. With rodrigo.”; (3) “Rodrigo wants me to be more muscular”; (4) “Sorry ... I had my DND on last night. Rodrigo doesn't like it when I get work calls while we are in bed”; (5) “Haha u said by noon. I gotta do something for rodrigo on the way. Surgi-lube shipment coming in”; and (6) “Rodrigo calling me.” [Doc. 73-3 at 27-45]. The text exchanges show that Plaintiff wrote the following: (1) “You an rodrigo” followed by a link to a website; (2) “Tell rodrigo u will see him tonight”; and (3) “Rodrigo” followed by what appears to be a rainbow emoji. [Id.]. Mr. Runyan only located one text exchange after 2012 that contained the term “Rodrigo” and both Plaintiff and Mr. Runyan used the term in a December 22, 2015, text exchange. [PSMF ¶ 59; DSMF ¶ 53]. Mr. Runyan's screen shot of the December 22, 2015, text exchange is the one that shows Mr. Runyan writing “Rodrigo calling me,” and Plaintiff writing “Rodrigo” followed by what appears to be a rainbow emoji. [PSMF ¶ 60; DSMF ¶ 53].
On March 11, 2016, Ms. Hartz requested that Plaintiff “send us a screen shot from your phone of the text message from [Mr. Runyan] referencing ‘Rodrigo’ .... If at all possible, we need to see a copy of the text and verification of the action phone number from which it came.” [30(b)(6) Dep., Ex. 4 at Bates No. 189; Doc. 89-8 at 3; DSMF ¶ 49]. On March 11, 2016, Plaintiff downloaded “InBrowser,” an “incognito” browsing application. [DSMF ¶ 50]. On March 14, 2016, Plaintiff took a screen shot of a group message between himself, Mr. Runyan, and ProCare Specialist Ryan Schmidt where the name “Rodrigo” was mentioned only by Mr. Runyan. [30(b)(6) Dep., Ex. 4 at Bates No. 188; Doc. 89-8 at 4; DSMF ¶ 51]. Plaintiff sent an email to Ms. Hartz which contained the screen shot of a group message where Mr. Runyan wrote, “Rodrigo calling me.” [DSMF ¶ 52; Pla. Dep. at 215-17; Doc. 89-8 at 4; Doc. 89-8 at 4]. The screen shot from Plaintiff did not include a message from Plaintiff to Mr. Runyan that said “Rodrigo” with a rainbow emoji, even though this message appeared in a screen shot of the same group conversation sent by Mr. Runyan. [DSMF ¶ 54; 30(b)(6) Dep., Ex. 4 at Bates No. 188; Doc. 73-3 at 45; Doc. 89-8 at 4].
*8 Kira Swain, Alaina Whitaker, and Sarah Hartz helped craft the discipline for both Jaymes Runyan and Plaintiff Stimson. [PSMF ¶ 62]. On March 17, 2016, Ms. Swain, Ms. Whitaker, and Ms. Hartz recommended that Mr. Runyan receive a written warning and that Plaintiff be terminated for violation of the “don't lie, cheat or steal” policy. [PSMF ¶ 63]. Mr. Runyan did not receive a written warning as his discipline was downgraded to a verbal warning. [PSMF ¶ 65]. In an email summarizing the recommended outcomes, Ms. Swain wrote the following, apparently to be given to Mr. Runyan in explaining the recommendation that he receive a warning:
While we were not able to draw a conclusion around the events that followed your seeing [Denise Adams] change, we find it applicable to clarify that professionalism must be maintained at all times as a Stryker employee. Sexual banter (as evidenced between you and Denise) is not appropriate. Text messages of the content seen during this investigation are also not acceptable.... Physical and verbal conduct, as alleged by you, are not acceptable and you will be fully supported.
[Doc. 89-2 at 23]. In the same email, Ms. Swain wrote the following with regard to the recommendation that Plaintiff be terminated:
While the allegations of verbal and physical abuse as well as the story around the changing incident were inconclusive and concerning, the bottom line is [Plaintiff] lied extensively during the interview. Here is the applicable excerpt: No recollection of Rodrigo; Got very quiet when questioned about teasing, first pause thus far, possibly thinking?; “Gosh I don't know. I tease them about being from West Virginia, about having an iPhone?”; You've never made a reference to Rodrigo?; “We have said Roger, we have all sorts of name. Instead of saying shit we will say ... so we don't use a cuss word. Has Rodrigo ever come out of my mouth, maybe, but I don't know what, don't know if he knew someone named Rodrigo, no bearing or basis for me to use that word with him.”; Have allegations that have been corroborated that you have used the word Rodrigo in reference to [Mr. Runyan]. You have no idea what I am talking about when I say Rodrigo?; If it is a friend of his or something, I don't know.... Subsequently, [Mr. Runyan] shared numerous text messages where [Plaintiff] referenced Rodrigo, the most recent being December of 2015. Stryker's “don't lie, cheat, or steal” policy is the most black and white of all company rules, with a corrective action of termination.
[Id.]. Paul Glynn, Vice President of Sales, made the ultimate decision to terminate Plaintiff's employment. [DSMF ¶ 61; Glenn Dep. at 14].
In a document titled “Case Summary,” Defendant Stryker explained that Mr. Runyan was given a verbal warning for the following reasons: (1) although possible, it was unlikely that Mr. Runyan intentionally peered in on Ms. Adams changing given both Mr. Runyan's and Mr. Schmidt's report that the office is shared by several nurses and neither knew that nurses changed there at 3 p.m., particularly with the proximity of a locker room and that on the day of the incident Plaintiff directed that Mr. Runyan locate Ms. Adams for business reasons; (2) although Ms. Adams reported being uncomfortable with Mr. Runyan, there was insufficient information discovered to conclude how many times Mr. Runyan approached Ms. Adams after the incident; (3) Stryker investigators found it unusual that Ms. Adams did not complain of this incident to her own employer and that Ms. Adams' account of Mr. Runyan's job performance starkly differed with a version from Kelly Creighton, an Interim OR Nurse Manager; and (4) these facts brought “into question whether [Ms. Adams] and [Plaintiff] may have been working together with common interest in having [Mr. Runyan] removed.” [Doc. 73-3 at 94-95; DSMF ¶ 57].
*9 Sarah Hartz testified at her deposition that Mr. Runyan was not initially forthcoming in acknowledging that there were multiple texts from him in which he referred to “Rodrigo” as his fictitious lover. [Hartz Dep. at 113, 188]. Ms. Hartz also testified that, although Mr. Runyan alleged that Clinical Coordinator Jenny Jones witnessed Plaintiff shoving Mr. Runyan into a wall, which resulted in a cut on Mr. Runyan's arm, and that Ms. Jones photographed the cut with her cell phone, Defendant Stryker was unable to corroborate Mr. Runyan's allegations. [Doc. 73-3 at 56; PSMF ¶ 25; Hartz Dep. at 117]. As previously noted, Ms. Jones denied taking a picture of a cut on Mr. Runyan's arm and did not recall anyone ever getting hurt. [PSMF ¶ 54].
On the night of March 21, 2016, Defendant Stryker cut off Plaintiff Stimson's access to the company's computer network. [PSMF ¶ 67]. On the morning of March 22, 2016, Plaintiff and his manager, Jason Smith, met at a hotel in Marietta, Georgia, and Mr. Smith informed Plaintiff that his employment had been terminated. The decision had already been made before the meeting. [PSMF ¶ 68]. Mr. Smith told Plaintiff that the termination was effective that day and that the decision was final. [PSMF ¶ 69]. At the time of Plaintiff's termination, he was forty years old. [PSMF ¶ 1]. At all times relevant to the instant suit, Jaymes Runyan was under forty years old. [PSMF ¶ 2].
After Mr. Smith told Plaintiff that he had been terminated, Vice President of Sales Paul Glynn and Compliance Officer Sarah Hartz were dialed in on a conference call from San Jose, California. [PSMF ¶ 70; DSMF ¶ 58]. Mr. Glynn told Plaintiff that the “don't lie, cheat or steal” policy applied to the CEO on down and was part of the company culture and expectation. [PSMF ¶ 70; Defendant's Response to PSMF ¶ 70]. Plaintiff recorded the meeting on his Samsung Note 4 without the consent or knowledge of any of the participants. [DSMF ¶ 59; Pla. Dep. at 69]. Plaintiff stated during the meeting that “I was told that if it's [a telephone call] in California both parties have to be aware the conversation is recorded,” and, when Mr. Smith told Plaintiff that Ms. Hartz and Mr. Glynn were available during the meeting by phone, Plaintiff stated, “at 7:24 in the morning?” [DSMF ¶ 60]. Mr. Smith testified that Plaintiff's actions in surreptitiously recording his termination meeting violated Defendant Stryker's policy and could be grounds for termination. [DSMF ¶ 67].
Mr. Glynn made the ultimate decision to terminate Plaintiff's employment. [DSMF ¶ 61]. Plaintiff testified that Mr. Glynn informed Plaintiff that he was terminated for his violation of the “don't lie, cheat or steal” policy. [DSMF ¶ 62]. At his deposition, Mr. Glynn testified that the “don't lie, cheat or steal” policy was not a zero-tolerance policy and that the discipline was dependent on a variety of factors. [PSMF ¶ 71]. Kim Larson, Senior Director of HR, conceded that termination of Plaintiff was not their only option and that Plaintiff could have received less punitive discipline. [PSMF ¶ 72].
On March, 24, 2016, two days after Plaintiff was terminated, Defendant Stryker gave Mr. Runyan a warning for engaging in inappropriate sexual banter. [DSMF ¶ 63]. Mr. Runyan was relocated to a different hospital at Kennestone Hospital's request. [DSMF ¶ 64].
Plaintiff obtained his personal cell phone number in December 2004, and has maintained that same number continuously until the time of his November 21, 2017, deposition. [DSMF ¶ 65]. Plaintiff obtained a Samsung Note 4 cell phone in October or November 2014. [DSMF ¶ 4]. At some point in late 2016, Plaintiff replaced his Samsung Note 4 cell phone with a Google Pixel cell phone. [DSMF ¶ 66]. Plaintiff testified that he did not modify the text messages in any way prior to emailing the screen shot to Defendant Stryker. [DSMF ¶ 68]. Plaintiff testified that since the transfer of data from the Samsung Note 4 to the Google Pixel, the Samsung Note 4 had been stored in his house in a cabinet. [DSMF ¶ 69]. Plaintiff testified that he took no special steps to preserve the data on the Samsung Note 4 since filing this lawsuit. [DSMF ¶ 70]. A forensic review of Plaintiff's Samsung Note 4 cell phone showed that on March 9, 2016, Plaintiff downloaded the SMS Backup and Restore Application. [DSMF ¶ 71]. Plaintiff testified that he did not know of any reason why the data on his Samsung Note 4 would have been destroyed or compromised. [DSMF ¶ 72]. On June 12, 2018, after the close of discovery in this litigation and the day before Plaintiff's response to Defendant's Motion for Sanctions was due, Plaintiff produced electronically stored information for the first time showing that he preserved his text message history from December 22, 2015, stored on his previous Samsung Note 4 cell phone on an “.xml” file. [DSMF ¶ 73]. Plaintiff's text message history stored on the “.xml” file shows that Plaintiff sent a “Rodrigo” text at 3:46 p.m. on December 22, 2015, that was not shown on the screen shot Plaintiff provided to Stryker during its investigation and that Mr. Runyan responded with a text message stating “Rodrigo” at 3:49 p.m. on December 22, 2015. [DSMF ¶ 74]. During this litigation, Plaintiff testified that he used the name “Rodrigo” in conversations with Runyan but as a “generic, all-encompassing name.” [DSMF ¶ 75].
*10 Additional facts will be set forth as necessary during discussion of Plaintiff's claims.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (amended 2010). Rule 56(a) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. See Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
The movant bears the initial burden of asserting the basis of his motion, and that burden is a light one. See Celotex, 106 S. Ct. at 2553. The movant is not required to negate his opponent's claim. See id. Rather, the movant may discharge this burden merely by “ ‘showing’ - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” Id. at 2554.
When evaluating a motion for summary judgment, the court must view the evidence and factual inferences in the light most favorable to the nonmoving party. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1309 (11th Cir. 2001). However, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). Instead, “the nonmoving party must present evidence beyond the pleadings showing that a reasonable jury could find in its favor.” Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007) (citing Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)).
The court will apply these standards in ruling on Defendant's motion for summary judgment.
III. Discussion
A. Title VII Retaliatory Termination Claim
Plaintiff Nate Stimson asserts that Defendant Stryker subjected him to retaliation in violation of Title VII by terminating his employment. [Doc. 1, Count I]. Title VII acts to shield employees from retaliation for certain protected practices. Specifically, the statute provides, in pertinent part:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). In University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534 (2013), the Supreme Court held that a plaintiff bringing a Title VII retaliation claim “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”
*11 Because Plaintiff relies on circumstantial evidence to support his retaliation claim, the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817, 1824-25 (1973), is applicable. SeeMealing v. Georgia Dep't of Juvenile Justice, 564 Fed. Appx. 421, 427 n.9 (11th Cir. 2014) (“We conclude that the McDonnell Douglas framework continues to apply after the Supreme Court's Nassar, holding that a plaintiff must demonstrate ‘but-for’ causation when making a Title VII retaliation claim.”). Under this framework, the allocation of burdens and order of presentation and proof are as follows: (1) the plaintiff has the burden of proving a prima facie case of retaliation; (2) if the plaintiff succeeds in proving the prima facie case, the burden (of production) shifts to the defendant to articulate some legitimate, non-retaliatory reason for the action taken against the employee; and (3) should the defendant carry this burden, the plaintiff must have an opportunity to prove that the legitimate reason offered by defendant was a pretext for retaliation. See McDonnell Douglas, 93 S. Ct. at 1824-25.
To establish a prima facie case of retaliation, an employee must prove that: (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action. See Mealing, 564 Fed. Appx. at 427; Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009) (citations omitted). Plaintiff Stimson argues that he was terminated from his employment in retaliation for engaging in protected activity. Plaintiff's termination on March 22, 2016, is a materially adverse action. [PSMF ¶¶ 68, 69]. Defendant Stryker argues that Plaintiff's retaliation claim fails because he cannot show that he engaged in statutorily protected activity under Title VII prior to his termination. [Doc. 76 at 17-18].
According to Plaintiff, he engaged in protected activity when he reported Jaymes Runyan's alleged sexual harassment of Denise Adams. [Doc. 90 at 15-17]. Mr. Runyan was employed by Defendant Stryker as a ProCare Specialist, and Ms. Adams was a nurse and clinical coordinator employed by WellStar Kennestone Hospital. [Adams Dep. at 10-16; PSMF ¶ 8; DSMF ¶ 9]. On one occasion in early 2016, Mr. Runyan looked into an office where nurses regularly change clothes and saw Ms. Adams as she was undressing. [Adams Dep. at 16-19; Doc. 73-3 at 89, 91; DSMF ¶ 24; PSMF ¶ 11]. The office door has a window that is covered with paper, but there is a slit in the paper. [Doc. 73-3 at 91]. Mr. Runyan watched Ms. Adams as she took her shirt off. [Adams Dep. at 16-19; Doc. 73-3 at 89, 91]. Ms. Adams testified that shortly thereafter, Mr. Runyan told Ms. Adams that he had seen her undressing. [Adams Dep. at 17-18]. Ms. Adams testified: “[Mr. Runyan] told me that he saw me undressing and that he didn't know if he should stay and watch or if he shouldn't. And he said that he decided to stay because he liked what he saw.” [Adams Dep. at 18]. Ms. Adams testified that over the next two weeks, Mr. Runyan approached her three or more times and repeated his comment about how “he liked what he saw, so he decided to stay and watch.” [Adams Dep. at 21-22; PSMF ¶ 13]. Plaintiff Stimson testified that he first learned of these events when Mr. Runyan informed Plaintiff that Mr. Runyan had watched Ms. Adams undress. [Pla. Dep. at 169; PSMF ¶ 14]. Ms. Adams subsequently approached Plaintiff and complained about Mr. Runyan's conduct. [Pla. Dep. at 169; PSMF ¶ 15]. On February 11, 2016, Plaintiff reported Mr. Runyan's actions to Rebecka Solar, Mr. Runyan's supervisor. [PSMF ¶ 16; DSMF ¶ 23].
Although Plaintiff argues that his report to Ms. Solar about Mr. Runyan's actions constituted statutorily protected activity under Title VII, the court finds Plaintiff's arguments unpersuasive. As previously noted, Title VII prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful practice” by Title VII. 42 U.S.C. § 2000e-3(a). The statute provides that an employer engages in “an unlawful employment practice” if the employer “discriminate[s] against any individual ... because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Therefore, for a plaintiff to show that he engaged in statutorily protected activity, he must show that he opposed conduct by the employer which constituted discrimination or retaliation under Title VII. The Eleventh Circuit has also recognized that a plaintiff can establish a prima facie case of retaliation “if he shows that he had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997) (citing Rollins v. State of Florida Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989)). The plaintiff's burden “has both a subjective and an objective component. A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented.” Id.
*12 The problem for Plaintiff Stimson is that he has failed to show that he opposed conduct which constituted a violation of Title VII or that he had a good faith, reasonable belief that his employer was engaged in conduct made unlawful by Title VII. Plaintiff was employed by Defendant Stryker, and he has not offered evidence that he reported unlawful discrimination with respect to the terms and conditions of employment within the company. The conduct that Plaintiff reported to a Stryker supervisor was Mr. Runyan's alleged sexual harassment of Denise Adams who was employed by WellStar Kennestone Hospital. [Adams Dep. at 10-16; PSMF ¶¶ 8, 16; DSMF ¶¶ 9, 23]. The WellStar Health System, of which WellStar Kennestone Hospital was a part, was Plaintiff's largest customer account. [DSMF ¶ 8]. Plaintiff testified that he felt that he had to report Mr. Runyan's alleged harassment of Ms. Adams “as a responsibility to [Ms. Adams], the customer, et cetera, ... because [Ms. Adams] felt threatened and she was not comfortable at work with [Mr. Runyan] there.” [Pla. Dep. at 169]. The alleged conduct by Stryker employee Mr. Runyan toward Ms. Adams was crude and denigrating, but it was not an “employment practice made unlawful” by Title VII because an employee's actions toward a third-party such as a customer is not a violation of the statute. 42 U.S.C. § 2000e-3(a). Moreover, Plaintiff Stimson could not have had a good faith, reasonable belief that Defendant Stryker had engaged in Title VII discrimination when Mr. Runyan allegedly harassed someone who was not employed by Stryker but by one of the company's customers.
As Defendant notes, the Eleventh Circuit addressed a similar claim in Edwards v. Ambient Healthcare of Georgia, Inc., 674 Fed. Appx. 926 (11th Cir. 2017). The plaintiff in Edwards, a female employee of the defendant, alleged that a male co-worker (who delivered pharmaceutical supplies) made inappropriate sexual comments to two female patients and hugged a female caregiver of another patient. Id. at 926. The court held that “the driver's alleged actions toward non-employee patients of Ambient and their caregivers (while reprehensible) is not an ‘employment practice made unlawful’ by Title VII.” Id. at 930 (citing 42 U.S.C. § 2000e–3(a); Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1007 n.16 (11th Cir. 1997) (noting that the plaintiff-employees did “not allege that they have been discriminated against by Motel 6 for opposing an unlawful employmentpractice, but that they were discriminated against for opposing an unlawful practice of discrimination in the provision of public accommodations”) (emphasis in original)).
Other courts faced with similar facts have arrived at the same conclusion. In Crowley v. Prince George's County, 890 F.2d 683 (4th Cir. 1989), the Title VII plaintiff was a former employee of a police department who alleged that his position had been downgraded in retaliation for his involvement in the investigation of “instances of racial harassment perpetrated by police officers against members of the community.” Id. at 684-85, 687. The Fourth Circuit held that the plaintiff's “claim simply is not cognizable under Title VII” because to “recognize Crowley's claim would be to authorize retaliation actions under Title VII for anyone whose job entails the investigation of any claim of discrimination against his or her employer, without regard to whether the claimed discrimination relates to a practice of employment.” Id.at 687. In Wimmer v. Suffolk County Police Dep't, 176 F.3d 125 (2nd Cir. 1999), the Title VII plaintiff asserted that he had been terminated in retaliation for speaking out against racism in the police department. Id. at 134-35. While the Second Circuit found that the plaintiff “presented evidence that certain members of the Department had acted in a discriminatory manner toward the public[,]” the plaintiff did not present any evidence “that there was unlawful discrimination with respect to the terms and conditions of employment within the Department.” Id. at 135.
In support of Plaintiff's argument that he engaged in protected activity, he argues that a third-party can create a hostile work environment. [Doc. 90 at 16]. While Plaintiff is correct, his argument is not relevant to his retaliation claim. Title VII makes it unlawful for employers to discriminate against their employees, and caselaw establishes that “employers may be liable [under Title VII] for failing to remedy the harassment of employees by third parties who create a hostile work environment.” Beckford v. Dep't of Corrections, 605 F.3d 951, 957 (11th Cir. 2010) (emphasis added). In the present case, Plaintiff did not complain about harassment directed at an employee of Defendant Stryker. Neither did Plaintiff complain that a third party created a hostile work environment endured by a Stryker employee. Instead, Plaintiff complained that one of his co-workers harassed an employee of a customer. District courts which have addressed Title VII retaliation claims based on a plaintiff's complaint of a co-worker's harassment directed at a customer have found that the plaintiff did not satisfy the protected activity requirement. See Petrisch v. HSBC Bank USA, Inc., 2013 WL 1316712, at *19 (E.D. N.Y. March 28, 2013) (holding that “plaintiff's retaliation claims ... do not concern protected activity because her complaints were directed at alleged discriminatory conduct towards [defendant's] customers and potential fraudulent activity unrelated to any employment relationship between plaintiff and [defendant]”); Kunzler v. Canon, USA, Inc., 257 F. Supp. 2d 574, 581-82 (E.D. N.Y. 2003) (holding that plaintiff “cannot satisfy the protected activity prong of a retaliation claim” because the plaintiff complained of a co-worker's “alleged harassment ... directed toward a customer”).
*13 The Eleventh Circuit's words in Edwards are applicable to the present case: “[Plaintiff] has not pointed us to any case law holding that an employee's discrimination against a third party is an unlawful employment practice under Title VII or that opposition to such conduct constitutes protected activity under Title VII.” Id., 674 Fed. Appx. at 930. Because Plaintiff Stimson has failed to offer evidence which would permit a reasonable jury to conclude that he engaged in statutorily protected activity, he is unable to establish a prima facie case of retaliation. Accordingly, the undersigned RECOMMENDS that Defendant's summary judgment motion [Doc. 73] be GRANTED on Plaintiff's Title VII retaliatory termination claim [Doc. 1, Count I].
B. ADEA Age Discrimination Claim
Plaintiff Stimson also asserts that Defendant Stryker terminated his employment on the basis of his age in violation of the ADEA. [Doc. 1, Count II]. The ADEA provides in pertinent part:
It shall be unlawful for an employer–(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age....
29 U.S.C. § 623(a)(1). In order to show age discrimination, a plaintiff must offer evidence sufficient to establish that age was the “but-for” cause of the challenged employment decision. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350-52 (2009); Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). The McDonnell Douglas framework applies to Plaintiff's ADEA termination claim. See Horn v. United Parcel Services, Inc., 433 Fed. Appx. 788, 792 (11th Cir. 2011) (“At the summary judgment stage, we apply the burden-shifting framework established in McDonnell Douglas ... to analyze ADEA claims based on circumstantial evidence of discrimination.”).
To establish a prima facie case of discriminatory discharge based on age, a plaintiff must show that: (1) he is a member of the protected age group; (2) he was subjected to an adverse job action; (3) he was qualified to do the job; and (4) he was replaced by a substantially younger individual or was treated less favorably than a similarly situated younger individual. SeeLiebman v. Metropolitan Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015); East v. Clayton County, Georgia, 436 Fed. Appx. 904, 911 (11th Cir. 2011); Morton v. Astrue, 380 Fed. Appx. 892, 894 (11th Cir. 2010) (applying identical prima facie elements for claims of both Title VII race discrimination and ADEA age discrimination); Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1083 (11th Cir. 2005) (finding that plaintiff “failed to show that any younger physician who received nearly identical complaints was treated better than he was”). The court finds that Plaintiff Stimson is able to establish these elements. On March 22, 2016, Plaintiff was terminated from his job as a Sales Representative, a position that he had held for more than a decade and one for which he was qualified. [DSMF ¶ 5; PSMF ¶¶ 68, 69; Pla. Dep. at 121]. Plaintiff was forty years old at the time of his termination. [PSMF ¶ 1]. The evidence also reveals that Jaymes Runyan, who was under forty years old at all times relevant to this action, was given only a verbal warning despite engaging in similar misconduct. [PSMF ¶¶ 2, 65]. Plaintiff Stimson is able to establish a prima facie case of discriminatory termination based on age, and Defendant Stryker makes no argument to the contrary. [Doc. 76 at 18-21].
“Once an employee has established a prima facie case, ‘the burden shifts to the employer to rebut the presumption of discrimination with evidence of a legitimate, nondiscriminatory reason for the adverse employment action.’ ” Liebman, 808 F.3d at 1298 (quoting Kragor v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)). “ ‘[T]o satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.’ ” Combs v. Plantation Patterns, 106 F. 3d 1519, 1528 (11th Cir. 1997)(quoting Texas Dep't of Community Affairs v. Burdine, 101 S. Ct. 1089, 1096 (1981)) (emphasis in original). A “ ‘defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’ ” Id. (quoting Burdine, 101 S. Ct. at 1094). The defendant's burden in the rebuttal stage is “ ‘exceedingly light.’ ” Walker v. NationsBank of Florida N.A., 53 F.3d 1548, 1556 (11th Cir. 1995)(quoting Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983)).
*14 Defendant Stryker asserts that it terminated Plaintiff's employment because, during the internal investigation in February and March of 2016 into allegations about Plaintiff and Jaymes Runyan, the company's “investigation team formed a good faith belief that Plaintiff was untruthful during his interview with Stryker.” [Doc. 76 at 21-22]. According to Defendant, its investigation team interviewed Plaintiff, and, after the team stressed the need for openness and honesty, Plaintiff denied knowledge of what the name “Rodrigo” meant and stated that he had no “bearing or basis” to use the term. [Id. at 22]. However, the investigation team discovered from three separate witnesses that Plaintiff had frequently used this term to refer to Mr. Runyan's fictitious homosexual partner. [Id.]. Defendant also asserts that the backup file of electronically stored information “that Plaintiff conveniently disclosed after discovery ended shows that Plaintiff sent the ‘Rodrigo’ text message missing from the screenshot he provided the Stryker investigation team.” [Id. at 22]. The court finds that Defendant Stryker has clearly satisfied its light burden of producing a legitimate, nondiscriminatory reason for terminating Plaintiff Stimson's employment.
Once a defendant meets its burden of production, the plaintiff then “has the opportunity to demonstrate that the defendant's articulated reason for the adverse employment action is a mere pretext for discrimination.” Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997) (citing McDonnell Douglas, 93 S. Ct. at 1825). The court “must, in view of all the evidence, determine whether the plaintiff has cast sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude that the employer's proffered ‘legitimate reasons were not what actually motivated its conduct[.]’ ” Combs, 106 F.3d at 1538 (quoting Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)). Plaintiff may establish pretext by pointing to “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” McCann v. Tillman, 526 F.3d 1370, 1375-76 (11th Cir. 2008) (citation and internal quotation marks omitted).
“In the disciplinary context, the plaintiff may show pretext by identifying a similarly situated employee who was not disciplined after engaging in similar conduct as the plaintiff.” Rawls v. Alabama Dep't of Human Resources, 507 Fed. Appx. 895, 898 (11th Cir. 2013) (citing Rioux v. City of Atlanta, Georgia, 520 F.3d 1269, 1276-77 (11th Cir. 2008)); accordMcDonnell Douglas, 93 S. Ct. at 1825 (“Especially relevant to ... a showing [of pretext] would be evidence that white employees involved in acts against petitioner of comparable seriousness ... were nevertheless retained or rehired.”); Bush v. Houston County Comm'n, 414 Fed. Appx. 264, 267 (11th Cir. 2011) (“We have stated that for purposes of summary judgment, an employer's assertion that an employee was fired for violating a work rule is ‘arguably pretextual when a plaintiff submits evidence ... that if she did violate the rule, other employees outside the protected class, who engaged in similar acts, were not similarly treated.’ ”) (quoting Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir. 1999)). A plaintiff “may ... use evidence that similarly-situated ... employees were treated more favorably to establish both a prima facie case and pretext.” Scott v. Sarasota Doctors Hosp., Inc., 145 F. Supp. 3d 1114, 1126 (M.D. Fla. 2015) (citations omitted); accord Rosenwasser v. All Scripts Healthcare, LLC, 2012 WL 3639057, at *4 (S.D. Fla. August 24, 2012) (“It is permissible for [plaintiff's] evidence of pretext to include the same evidence offered initially to establish her prima facie case.”) (citing Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004)). “ ‘[A] plaintiff employee may not establish that an employer's proffered reason is pretextual merely by questioning the wisdom of the employer's reason’ as long as ‘the reason is one that might motivate a reasonable employer.’ ” Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (citation omitted). However, a plaintiff may establish a “convincing mosaic” of evidence of intentional discrimination by, in part, showing that his employer's justification for the adverse employment action is pretextual. Lewis v. City of Union City, 877 F.3d 1000, 1018 (11th Cir. 2017).
*15 In the present case, Plaintiff Stimson argues that Defendant Stryker's proffered reason for terminating his employment is a pretext for age discrimination. [Doc. 90 at 18-22]. Although Defendant asserts that it terminated Plaintiff's employment because the company believed that Plaintiff was untruthful during his interview with Stryker's investigation team regarding his use of the term “Rodrigo,” Plaintiff asserts that Jaymes Runyan was untruthful and evasive during the same investigation but was only given a verbal warning. [Id.; Doc. 76 at 21-22]. The court finds Plaintiff's arguments persuasive. Plaintiff has pointed to enough weaknesses, inconsistencies, and contradictions in Defendant's proffered reason for firing Plaintiff that a reasonable jury could find that the proffered reason was a mere pretext for discrimination. See McCann, 526 F.3d at 1375-76.
In the light most favorable to Plaintiff, the evidence reveals that in early 2016, Mr. Runyan not only watched nurse Denise Adams undress while he looked through a slit in an office door where nurses regularly change clothes but that on multiple occasions, Mr. Runyan told Ms. Adams that he saw her undress and that “he liked what he saw, so he decided to stay and watch.” [Adams Dep. at 18-22]. Mr. Runyan also told Plaintiff that he had watched Ms. Adams undress, and Ms. Adams subsequently complained to Plaintiff about Mr. Runyan's behavior. [Pla. Dep. at 169]. Plaintiff reported Mr. Runyan's actions to Rebecka Solar, Mr. Runyan's supervisor, and Ms. Solar passed Plaintiff's report along to Associate HR Manager Ali Schultz. [PSMF ¶ 16; DSMF ¶¶ 23, 24, 26; Doc. 73-3 at 89 Pla. Dep. at 169]. Shortly thereafter, Ms. Schultz called Mr. Runyan and explained to him that there was an allegation that he had spied on Ms. Adams undressing and approached her with salacious comments. [PSMF ¶ 18; DSMF ¶ 32]. Mr. Runyan acknowledged to Ms. Schultz that he had watched Ms. Adams take her top off. [Doc. 73-3 at 9-92]. Although Ms. Solar, Mr. Runyan's supervisor, later asked Ms. Schultz if she could transfer Mr. Runyan to a different account, Ms. Schultz refused the request. [PSMF ¶ 22]. Ms. Solar testified that Defendant Stryker “aggressively pursued the allegations against [Plaintiff] and seemed to stop investigating the complaint about [Mr. Runyan's] behavior with Denise Adams.” [Solar Dec. ¶ 14]. In addition, Jason Smith, Plaintiff's manager, interviewed Ms. Adams in person about Mr. Runyan's sexual harassment, confirmed that her account of events matched what was originally reported, and found her to be credible. [PSMF ¶¶ 36, 37]. Mr. Smith subsequently emailed his supervisors and expressed his frustration that Mr. Runyan had not been removed from Kennestone Hospital even though Mr. Smith had verified the incident with Ms. Adams. [PSMF ¶ 38; Glenn Dep. at 14].
Despite the verified allegations of harassment made against Mr. Runyan and despite supervisors requesting his transfer away from Kennestone Hospital, Defendant Stryker refused to transfer Mr. Runyan. However, even before the investigation team had interviewed Plaintiff about Mr. Runyan's allegations against him, Defendant removed Plaintiff from Kennestone Hospital and warned him that he was not to have any contact with any employees at the facility. [PSMF ¶¶ 39, 40; 30(b)(6) Dep., Ex. 4 at Bates No. 251]. Furthermore, Defendant Stryker immediately informed Mr. Runyan of the specific allegations made against him during his initial interview. [PSMF ¶ 18]. But when Compliance Officer Sarah Hartz informed Plaintiff that he was being removed from Kennestone Hospital “due to some very serious workplace misconduct allegations” against him, Ms. Hartz told Plaintiff that Stryker was not ready to inform him about what those allegations were. [30(b)(6) Dep., Ex. 4 at Bates No. 251; PSMF ¶¶ 40, 41].
*16 After Mr. Runyan figured out that it was Plaintiff Stimson who had informed Stryker management about Mr. Runyan's harassment of Ms. Adams, Mr. Runyan sent an email to Stryker HR employees alleging that he had suffered “consistent, excessive, and extreme harassment” over the last four years at the hands of Plaintiff. [PSMF ¶ 23; DSMF ¶ 30; Doc. 73-3 at 56-57]. In the email, Mr. Runyan alleged that Plaintiff had shoved him against a wall, resulting in a cut to his arm, and that Plaintiff had shoved Mr. Runyan in the OR to the point where he almost fell into a sterile field. [PSMF ¶ 24; DSMF ¶ 30]. Mr. Runyan claimed that “Wellstar Kennestone Clinical Coordinator Jenny Jones witnessed [Plaintiff] shove me into a wall with his forearm, resulting in a cut on my arm, which she photographed with her cell phone.” [Doc. 73-3 at 56; PSMF ¶¶ 24, 25; DSMF ¶ 30]. However, when Ms. Jones was interviewed by HR Manager Alaina Whitaker, Ms. Jones denied taking a picture of a cut on Mr. Runyan's arm and did not recall anyone ever getting hurt.[5] [PSMF ¶ 54].
On March 10, 2016, members of Stryker's investigation team called Plaintiff while he was on vacation, but they did not inform Plaintiff of the allegations against him. [PSMF ¶ 42; DSMF ¶ 45; PSMF ¶ 46]. When Plaintiff was asked if he had any recollection of referring to “Rodrigo” in his interactions with Mr. Runyan, Plaintiff was caught off guard and did not remember joking with Mr. Runyan about using the word “Rodrigo.” [PSMF ¶ 50]. However, Plaintiff did, in fact, state that he might have used the word “Rodrigo” with Mr. Runyan and that he used lots of names with Mr. Runyan. [PSMF ¶¶ 48, 49]. Compliance Officer Sarah Hartz testified that when she told Plaintiff that Stryker had multiple sources who had corroborated that Plaintiff knows what “Rodrigo” refers to and asked if Plaintiff was sure of his answer, Plaintiff stated that he recalled Mr. Runyan using the term “Rodrigo.” [Hartz Dep. at 111; 30(b)(6) Dep., Ex. 4 at Bates No. 183; DSMF ¶ 48].
Although Plaintiff was correct is his assertion that Mr. Runyan had used the term “Rodrigo,” and although Plaintiff acknowledged that he might have used the word “Rodrigo” with Mr. Runyan, Defendant asserts that Plaintiff's untruthfulness regarding the term “Rodrigo” during the interview was the reason the company terminated Plaintiff's employment. [Doc. 76 at 21-22]. Four days after the investigation's interview with Plaintiff, Kira Swain, Defendant Stryker's Director of HR Compliance, emailed Mr. Runyan and asked him to send her a copy of a text where he “had mentioned a reference to Rodrigo via text message between [Mr. Runyan] and [Plaintiff].” [Hartz Dep., Ex. 20; Doc. 89-3]. Despite the fact that the evidence revealed that Mr. Runyan had frequently used the term “Rodrigo” in text messages with Plaintiff, Mr. Runyan stated that he did “not recall mentioning a reference to Rodrigo via text message.” [Id.]. Mr. Runyan stated, however, that he would go back through his phone backup to see if he could find anything. [Id.]. A reasonable jury could find that Plaintiff and Mr. Runyan made similar denials when each was asked about his use of the term “Rodrigo” but that Defendant Stryker treated Mr. Runyan far more favorably than Plaintiff.
The evidence also reveals that, in the text messages seen by Stryker's investigation team, all but one of the text exchanges that used “Rodrigo” occurred in 2012 and that Mr. Runyan used the term “Rodrigo” far more frequently than Plaintiff. Although Mr. Runyan initially informed Ms. Swain that he did “not recall mentioning a reference to Rodrigo via text message,” the record reveals that Mr. Runyan wrote the following in text messages: (1) “Yeah it's a good thing I can fit into youth sizes. And that my life motto is ‘love me tender.’ Rodrigo loves it.”; (2) “Nah ill wait until she's in my bed later on. With rodrigo.”; (3) “Rodrigo wants me to be more muscular”; (4) “Sorry ... I had my DND on last night. Rodrigo doesn't like it when I get work calls while we are in bed”; (5) “Haha u said by noon. I gotta do something for rodrigo on the way. Surgi-lube shipment coming in”; and (6) “Rodrigo calling me.” [Doc. 73-3 at 27-45; PSMF ¶ 58; Hartz Dep., Ex. 20; Doc. 89-3]. The text exchanges show that Plaintiff wrote the following: (1) “You an rodrigo” followed by a link to a website; (2) “Tell rodrigo u will see him tonight”; and (3) “Rodrigo” followed by what appears to be a rainbow emoji. [Id.]. Mr. Runyan only located one text exchange after 2012 that contained the term “Rodrigo,” and both Plaintiff and Mr. Runyan used the term in a December 22, 2015, text exchange. [PSMF ¶ 59; DSMF ¶ 53].
*17 The undersigned finds that Plaintiff has offered sufficient evidence of pretext to survive Defendant's summary judgment motion on his ADEA termination claim. Although Defendant Stryker has offered a legitimate, nondiscriminatory reason for terminating Plaintiff's employment, Plaintiff has met that reason head on and rebutted it. See Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (“Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.”). Defendant asserts that Plaintiff was terminated for being untruthful during the interview about using the term “Rodrigo,” but the evidence reveals that Mr. Runyan made a denial similar to the one made by Plaintiff and that Plaintiff acknowledged during the interview that he might have used the word with Mr. Runyan. And yet, although Mr. Runyan engaged in similar misconduct and untruthfulness, Defendant decided to issue Mr. Runyan only a verbal warning. Furthermore, some of the allegations made by Mr. Runyan against Plaintiff were contradicted during the investigation. At the same time, the allegations made by Plaintiff against Mr. Runyan regarding his actions in watching Ms. Adams undress and making salacious comments afterwards were confirmed. And, although members of management (including Mr. Runyan's supervisor) wanted Mr. Runyan removed from Kennestone Hospital, Mr. Runyan remained at the hospital for a significant amount of time. In contrast, even before Stryker's investigation team had interviewed Plaintiff about Mr. Runyan's allegations against him, Defendant removed Plaintiff from Kennestone Hospital and warned him that he was not to have any contact with any employees at the facility. The difference in Defendant Stryker's treatment of Plaintiff and Mr. Runyan would permit a factfinder to conclude that Defendant's proffered reason for firing Plaintiff was pretextual. See McDonnell Douglas, 93 S. Ct. at 1825 (“Especially relevant to ... a showing [of pretext] would be evidence that white employees involved in acts against petitioner of comparable seriousness ... were nevertheless retained or rehired.”); Walker v. St. Joseph's/Candler Health System, Inc., 506 Fed. Appx. 886, 889 (11th Cir. 2013) (“A typical means of establishing pretext is through comparator evidence.”) (citing Silvera v. Orange County School Bd., 244 F.3d 1253, 1259 (11th Cir. 2001); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1563 n. 20 (11th Cir. 1987)).
In summary, a reasonable jury viewing the evidence discussed supra in the light most favorable to Plaintiff could conclude that Defendant's proffered reason for the termination decision was “unworthy of credence” and is a mere pretext for age discrimination. McCann, 526 F.3d at 1375-76 (citation and internal quotation marks omitted); accord Ash v. Tyson Foods, Inc., 664 F.3d 883, 897-98 (11th Cir. 2011). The undersigned, therefore, RECOMMENDS that Defendant's summary judgment motion [Doc. 73] be DENIED on Plaintiff's ADEA claim that he was terminated based on age discrimination [Doc. 1, Count II].
C. After-Acquired Evidence
Defendant Stryker argues that based on “after-acquired” evidence of misconduct by Plaintiff, his claim for back pay is barred. [Doc. 76 at 25-27]. According to Defendant, the following two instances of severe misconduct would have resulted in his termination: “Plaintiff's evasive omission of the text message where he used the name ‘Rodrigo’ in his screenshot submission to Stryker; and Plaintiff's surreptitious and illegal recording of his termination meeting.” [Id. at 25]. Defendant argues that because his terminable behavior occurred while he was still employed and Defendant was unaware of Plaintiff's behavior because of his concealment, his back pay must “be limited from the time he engaged in the terminable offenses going forward” and, therefore, he “is entitled to no back pay.” [Id. at 26-27]. Defendant's argument is based on the Supreme Court's decision in McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995).
In McKennon, the plaintiff, who was terminated during a reduction in force program, filed suit alleging that she had been terminated based on her age in violation of the ADEA. During pretrial discovery, the defendant discovered misconduct by the plaintiff during her last year of employment. At that point, the defendant sent the plaintiff another termination letter advising her that she was terminated for the newly discovered misconduct. McKennon, 115 S. Ct. at 882-83. Because the misconduct was not discovered until after the plaintiff had been fired for the allegedly unlawful motive, the Supreme Court held that the evidence could not be used by the defendant as a motive for the termination; however, the Court stated that “we must consider how the after-acquired evidence of the employee's wrongdoing bears on the specific remedy to be ordered.” Id. at 885. The Court found that “as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.” Id. at 886. With respect to the issue of back pay, the Supreme Court held that, excepting any other “extraordinary equitable circumstances[,]” the appropriate “calculation of back pay [is] from the date of the unlawful discharge to the date the new information was discovered.” Id. Finally, the Court held that “[w]here an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. at 886-87.
*18 In the present case, the court finds that Defendant has failed to establish the after-acquired evidence defense. Defendant Stryker claims that Plaintiff Stimson engaged in terminable misconduct when he omitted the text message where he used the name “Rodrigo” in his screen shot submission to Defendant Stryker's investigation team. The evidence reveals that on March 11, 2016, Compliance Officer Sarah Hartz requested that Plaintiff “send us a screen shot from your phone of the text message from [Mr. Runyan] referencing ‘Rodrigo.’ ” [30(b)(6) Dep., Ex. 4 at Bates No. 189; Doc. 89-8 at 3; DSMF ¶ 49]. On March 14, 2016, Plaintiff took a screen shot of the text message from Mr. Runyan referencing “Rodrigo,” which appears to be precisely what Ms. Hartz requested. [30(b)(6) Dep., Ex. 4 at Bates No. 188; Doc. 89-8 at 4; DSMF ¶ 51]. In addition, the after-acquired evidence defense is applicable in “cases where, after termination, it is discovered that the employee has engaged in wrongdoing[.]” McKennon, 115 S. Ct. at 886. But as Plaintiff notes, Defendant Stryker acquired the information regarding Mr. Runyan's and Plaintiff's use of the term “Rodrigo” in text exchanges prior to Plaintiff's termination, not after the termination. Therefore, this evidence is not “after-acquired evidence.”
Moreover, although Defendant claims that it “has conclusively shown that evasiveness during an internal investigation is a terminable offense,” a reasonable jury would not be required to find in Defendant's favor on this issue. [Doc. 76 at 26]. As discussed supra, evidence viewed in the light most favorable to Plaintiff reveals that Mr. Runyan, like Plaintiff, gave untruthful and evasive responses during the investigation. However, Mr. Runyan was not terminated despite corroborating evidence that he had not only been untruthful but that he had also engaged in misconduct by watching Ms. Adams undress and telling her numerous times that “he liked what he saw, so he decided to stay and watch.” [Adams Dep. at 21-22].
Defendant Stryker also contends that “Plaintiff's surreptitious and illegal recording of his termination meeting” satisfies the after-acquired evidence affirmative defense because it was severe misconduct that would have resulted in his termination. [Doc. 76 at 25]. But as Plaintiff points out, the decision to terminate his employment was made before the meeting when Plaintiff recorded the conversation. Paul Glynn, Vice President of Sales, made the ultimate decision to terminate Plaintiff's employment. [DSMF ¶ 61; Glenn Dep. at 14]. After this decision was made, Plaintiff's manager, Jason Smith, informed Plaintiff that his employment had been terminated during a meeting at a hotel on the morning of March 22, 2016. [PSMF ¶ 68]. It was at this time that Plaintiff recorded the meeting. [DSMF ¶ 59; Pla. Dep. at 68-69]. Plaintiff testified that he had a hunch that Mr. Smith was going to inform him of his termination during the meeting. [Pla. Dep. at 68-69]. The meeting occurred shortly after members of Stryker's investigation team interviewed Plaintiff without informing him of the allegations against him. [PSMF ¶ 42; DSMF ¶ 45; PSMF ¶ 46].
Because Plaintiff's alleged misconduct occurred after Defendant had made the termination decision, it is not clear if McKennon applies. The Eleventh Circuit has not addressed the issue of whether McKennon applies to post-termination wrongdoing, and other courts are somewhat divided on the issue. See Jones v. Nissan North America, Inc., 438 Fed. Appx. 388, 406-07 (6th Cir. 2011) (noting that some “courts have concluded that, because McKennon was premised on an employee-employer relationship, any misconduct occurring outside that relationship falls outside of the reach of that rule”) (citations omitted). Even the circuit courts holding that “post-employment misconduct could be the basis for applying McKennon's after-acquired evidence defense” have also counseled against applying the defense to limit recovery for the plaintiff where the alleged misconduct can be attributable to the defendant's wrongful termination decision. See id. at 406 (emphasis in original); Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir. 2004) (finding that “an employee's post-termination conduct can, in some circumstances, limit an employee's remedies for a wrongful discharge”); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555 (10th Cir. 1999)(“Although we do not foreclose the possibility that in appropriate circumstances the logic of McKennon may permit certain limitations on relief based on post-termination conduct, ... we cannot conclude that the district court abused its discretion in refusing to adopt defendant's proffered instruction.”). See also Vaughn v. Sabine County, 104 Fed. Appx. 980, 988 (5th Cir. 2004) (“Holman's action occurred after Sabine County decided not to offer her employment. Logically, Sabine County could not have known of Holman's actions at the time she was not rehired because those actions had not yet occurred.”).
*19 In the present case, the decision to fire Plaintiff had already been made before Plaintiff recorded the termination conversation, and a jury could find that Plaintiff made the recording as a result of his belief that he was going to be terminated. Furthermore, a reasonable jury could examine the evidence in the light most favorable to Plaintiff and conclude that Defendant Stryker has failed to “establish that [Plaintiff's alleged] wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” McKennon, 115 S. Ct. at 886-87. If this case goes to trial, the district court may decide to instruct the jury that Plaintiff's conduct could serve to limit damages if Defendant is able to show the level of severity required by McKennon. However, the undersigned concludes that at this stage of the litigation, it is not proper to bar Plaintiff's claim for back pay based on Defendant's after-acquired evidence argument.
D. Defamation Claim
In addition to his federal claims, Plaintiff Stimson asserts a state law claim against Defendant Stryker for defamation. [Doc. 1, Count III]. According to Plaintiff, statements made by Defendant's employees constitute defamation under O.C.G.A. § 51-5-4. [Id. ¶ 127]. The Georgia code cited by Plaintiff in his complaint provides that defamation consists in: “(1) Imputing to another a crime punishable by law; (2) Charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; (3) Making charges against another in reference to his trade, office, or profession, calculated to injure him therein; or (4) Uttering any disparaging words productive of special damage which flows naturally therefrom.” O.C.G.A. § 51-5-4(a). “Under Georgia law, three elements must be proven to establish defamation: (1) the statement was false, (2) the statement was malicious, and (3) the statement was published.” Information Systems and Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1228 (11th Cir. 2002); see also Davita Inc. v. Nephrology Associates, P.C., 253 F. Supp. 2d 1370, 1375 (S.D. Ga. 2003) (same).
In his complaint, Plaintiff offered no specifics regarding the factual basis for his defamation claim. Plaintiff alleged in his complaint that “Defendant's employees accused [him] of committing a crime by alleging that he violated Federal Law by describing his termination as being merited for Plaintiff's ‘compliance issues.’ ” [Doc. 1 ¶ 124]. Plaintiff also asserted in the complaint that Stryker employees made “charges against Plaintiff in reference to his trade, office, or profession, calculated to injure him therein.” [Id. ¶ 125]. Although Plaintiff offered no specifics in his complaint, Plaintiff alleges in his response brief that “Jason Smith wrote two emails addressed to multiple people that Stimson was fired for ‘compliance.’ ” [Doc. 90 at 24]. The emails were attached to the declaration of Plaintiff's attorney filed with his response brief. [Doc. 90-4 at 8-9]. One of the emails from Mr. Smith was addressed to a fellow Stryker employee who had asked, “[W]hat happened with Nate?” [Doc. 90-4 at 8]. Mr. Smith responded in an email dated March 28, 2016, by writing, “Compliance ... Sucks.” [Id.]. The other email from Mr. Smith was addressed to three other Stryker employees and stated, in pertinent part: “Not sure if you heard but we had to let Nate Stimson go last week. Tough situation (compliance).” [Doc. 90-4 at 9].
As previously noted, one of the elements necessary to bring a defamation claim under Georgia law is publication. See Information Systems and Networks Corp., 281 F.3d at 1228. Georgia courts have recognized that “an exception to the broad definition of publication [is] ... when the communication is intracorporate ... and is heard by one who, because of his/her duty or authority has reason to receive the information[.]” Kurtz v. Williams, 188 Ga. App. 14, 15, 371 S.E.2d 878, 880 (1988). Defendant argues, and the court agrees, that Mr. Smith's statements did not meet the publication requirement necessary to bring a defamation claim due to the intracorporate communication exception. [Doc. 91 at 14-15].[6] In the email conversations between Mr. Smith and other Stryker employees, Mr. Smith mentioned Plaintiff's termination in the context of business discussions about his prior sales territory and contacts at Kennestone Hospital. [Doc. 90-4 at 8-9]. Mr. Smith's statements were intracorporate communications, and Plaintiff's defamation claim fails on this basis.
*20 In addition, although Plaintiff alleged defamation based on his allegation that Stryker “employees accused [him] of committing a crime by alleging that he violated Federal Law,” the court finds that such a claim cannot survive summary judgment. [Doc. 1 ¶ 124]. Georgia courts have explained that to bring a defamation claim based on allegedly imputing a crime, “ ‘[T]he words at issue must charge the commission of a specific crime punishable by law. Where the plain import of the words spoken impute no criminal offense, they cannot have their meaning enlarged by innuendo.’ ” Cottrell v. Smith, 299 Ga. 517, 524, 788 S.E.2d 772, 781 (2016) (quoting Dagel v. Lemcke, 245 Ga. App. 243, 244, 537 S.E.2d 694, 696 (2000)). In the present case, a reasonable jury could not examine the emails from Mr. Smith and conclude that his words about Plaintiff being terminated for “compliance” charged Plaintiff with “ ‘the commission of specific crime punishable by law.’ ” Id. (citation omitted). For these reasons, it is RECOMMENDED that Defendant's motion [Doc. 73] for summary judgment be GRANTED on Plaintiff's state law claim of defamation [Doc. 1, Count III].
IV. Motion for Sanctions
Defendant Stryker has also filed a motion [Doc. 63] for discovery sanctions pursuant to Federal Rule of Civil Procedure 37(e). Rule 37(e) provides:
Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e). Defendant states in its motion that it “seeks the extraordinary sanction of dismissal of the case, with prejudice, as the only appropriate sanction to remedy Plaintiff's intentional destruction of critical evidence, perjury, and the bad faith pursuit of this litigation by both Plaintiff and his counsel.” [Doc. 63 at 1].
Defendant points out that a discrepancy exists between screen shots provided by Jaymes Runyan and Plaintiff Stimson regarding a text exchange that occurred on December 22, 2015. [Doc. 63-1 at 3]. In the screen shot from Mr. Runyan, there is a message from Plaintiff that uses the term “Rodrigo” with a rainbow emoji in the same message. [Id., Ex. A]. But in Plaintiff's screen shot, the message does not appear. [Id.]. Defendant argues that the “most reasonable explanation for this clear discrepancy is that Stimson deleted his ‘Rodrigo’ message from the chat immediately prior to making a screen shot.” [Id. at 3]. According to Defendant, if the electronically stored information (“ESI”) shows that Plaintiff deleted the “Rodrigo” message with a rainbow emoji and also submitted a false screen shot of the altered text exchange to Defendant during the internal investigation, “that evidence would be determinative as to Stryker's finding that Stimson was evasive and deceitful regarding the ‘Rodrigo’ comments” and it would “demonstrate that Stimson commenced this litigation in bad faith, including without limitation by knowingly filing a Complaint asserting falsehoods.” [Id.]. Defendant contends that “the key ESI will never be available to the parties or the Court” and that “the evidence already gathered conclusively demonstrates that Plaintiff intended to deprive all parties and the Court with access to the key evidence.” [Id. at 11]. On this basis, Defendant argues that Plaintiff's complaint should be dismissed pursuant to Rule 37(e). The court finds Defendant's arguments lacking.
*21 The language of Rule 37(e) makes it clear that the rule only applies in cases where ESI is “lost ... and it cannot be restored or replaced through additional discovery....” The 2015 Advisory Committee Notes to Rule 37(e)provides: “[The rule] applies only when such information is lost. Because electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere.”
In the present case, the ESI of the text exchange between Plaintiff and Mr. Runyan on December 22, 2015, is not lost. The ESI of the text exchange was stored on Mr. Runyan's phone and provided to Defendant in March 2016. Moreover, the same ESI was provided to Defendant by Plaintiff showing that he preserved his text message history from December 22, 2015, stored on his previous Samsung Note 4 cell phone on an “.xml” file. [DSMF ¶ 73]. Plaintiff's text message history stored on the “.xml” file shows that Plaintiff sent a “Rodrigo” text at 3:46 p.m. on December 22, 2015, that was not shown on the screen shot that Plaintiff provided to Stryker during its investigation, and that Mr. Runyan responded with a text message stating “Rodrigo” at 3:49 p.m. on December 22, 2015. [DSMF ¶ 74].
In sum, Defendant's Rule 37(e) motion is based on the ESI of the December 2015 text exchange between Plaintiff and Mr. Runyan, but this ESI is not lost. Rule 37(e), therefore, does not apply. See Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., 2016 WL 1105297, at *5 (S.D. Fla. March 22, 2016) (“[T]he great majority of Defendant's text messages were provided to Plaintiff by another party. Accordingly, the great majority of Defendant's text messages were not ‘lost’, and sanctions under Rule 37(e) are simply not available in relation to those text messages.”). It is RECOMMENDED that Defendant's Rule 37(e) motion [Doc. 63] for discovery sanctions, including dismissal of the complaint, be DENIED.[7]
V. Conclusion
Based on the foregoing reasons and cited authority, the undersigned RECOMMENDS that Defendant Stryker's motion [Doc. 73] for summary judgment be: GRANTED on Plaintiff Stimson's Title VII retaliatory termination claim [Doc. 1, Count I]; DENIED on Plaintiff's ADEA claim that he was terminated based on age discrimination [Doc. 1, Count II]; and GRANTED on Plaintiff's state law claim of defamation [Doc. 1, Count III].
It is further RECOMMENDED that Defendant's Rule 37(e) motion [Doc. 63] for discovery sanctions be DENIED.
If the district court adopts this report and recommendation, the only claim remaining in this case will be Plaintiff's claim that Defendant terminated his employment on the basis of his age in violation of the ADEA. [Doc. 1, Count II].
*22 All pretrial matters have been concluded with the issuance of this Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1), this Court's Local Rule 72.1, and Standing Order 18-01 (N.D. Ga. February 12, 2018). The Clerk, therefore, is DIRECTED to terminate the reference to the Magistrate Judge.
SO RECOMMENDED, this 24th day of January, 2019.
Like Plaintiff, Mr. Runyan acknowledged receipt of the Stryker Endoscopy Employee Handbook. [PSMF ¶ 3].
Ms. Adams denied telling Mr. Runyan that she would “put out” if he took her to Italy. [Adams Dep. at 36]. Ms. Adams testified that when Mr. Runyan said he was going to Europe, she jokingly told him, “Oh, yeah, pick me up and, you know, in the morning with a suitcase, yeah, or something like that. I never implied that I would put out.” [Id.].
Ms. Whitaker had changed her last name to Higgins by the time of her deposition. [Higgins Dep.].
The spelling and punctuation of the text messages have not been corrected.
Moreover, during interviews by the investigation team, Mr. Smith denied that Plaintiff was physically aggressive, and Eric Pugh, a ProCare Specialist who had worked with Mr. Runyan at Kennestone in 2012, denied that either he or Mr. Runyan had been physically touched by Plaintiff, stating that Plaintiff “never put his hand on me, or [Mr. Runyan] to my knowledge.” [PSMF ¶¶ 32, 34].
The court recognizes that Defendant offered this argument for the first time in its reply brief. However, as noted supra, Plaintiff did not identify in his complaint the allegedly defamatory statements or even the speaker who made them. Plaintiff only specified in his response brief that the allegedly defamatory statements were made via emails by Mr. Smith. [Doc. 90 at 16, 24-25; Doc. 90-4 at 8-9]. After Defendant argued in its reply brief that Plaintiff's defamation claim failed based on the intracorporate communication exception, Plaintiff did not request permission to file a surreply or otherwise seek to address Defendant's argument on this issue. [Doc. 91 at 14-15]. Furthermore, the court fails to see how a persuasive argument could be made that the intracorporate communication exception does not apply in the present case given the fact that the evidence submitted by Plaintiff himself clearly shows that Mr. Smith made his communications only to other Stryker employees in the context of explaining the decision to terminate Plaintiff's employment. [Doc. 90-4 at 8-9].
The court also notes that in support of Defendant's argument that Plaintiff must have deleted the relevant text conversation, Defendant cites to a report from a forensic ESI expert who examined Plaintiff's Samsung Note 4 phone. [Doc. 63-1 at 6]. The ESI expert wrote in its report that it “was unable to locate the conversation of interest ... that allegedly took place on 12/22/2016....” [Doc. 63-3 at 6]. The ESI expert also wrote that it was possible that text conversation was deleted based on “gaps in sequential ROWID fields, including gaps on 12/22/2016.” [Id.]. Given the fact that the text exchange between Plaintiff and Runyan took place on December 22, 2015, the court fails to see the relevance of an expert's report which repeatedly references an inability to locate information from a year later, December 22, 2016.