Opinion
Civil Action No. 1:04-CV-100-C.
August 16, 2004
MEMORANDUM OPINION AND ORDER
On this date the Court considered UNITED SUPERMARKETS, LTD., FORMERLY D/B/A UNITED SUPERMARKETS, INC.'s ("Defendant" or "United") Motion for Summary Judgment and Brief in Support with Appendix, filed March 12, 2004. The Court also considered Plaintiff EDWIN DOUGLAS PETROSS's ("Plaintiff") Brief in Response to Defendant's Motion for Summary Judgment with Appendix, filed April 23, 2004. The Court further considered Defendant's Reply Brief to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed with leave of the Court on May 10, 2004. The Court additionally considered the Plaintiff's Sur-reply with Supplemental Appendix, filed with leave of the Court on June 8, 2004. After considering all the relevant arguments and evidence, this Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED.
I. BACKGROUND
Plaintiff, along with Charles Jackson and Clay C. Bush, originally filed this lawsuit on December 22, 2002, in the 104th Judicial District Court in and for Taylor County, Texas. After Plaintiff filed his First Amended Petition alleging claims of age discrimination under the Age Discrimination in Employment Act ("ADEA") and the Texas Commission on Human Rights Act ("TCHRA"), Defendant removed the case to this Court.Plaintiff was approximately 41 years of age when he was first hired to work for United by David McKenzie ("McKenzie"), one of United's District Managers. Thereafter, Plaintiff worked for Defendant off and on, his last employment being from November 1998 until he was terminated in December 2000. Plaintiff was hired by District Manager McKenzie for this last employment period.
At the time of his termination, Plaintiff was 51 years of age.
Plaintiff worked as a Grocery Manager and Service Manager for United's Store No. 547 in Abilene, Texas until December 3, 2000. As Grocery Manager, Plaintiff's duties included the complete operation of the Grocery Department within the store. Plaintiff was counseled by the Store Director, Mr. Ernest Proctor ("Proctor"), on several occasions about the condition of the Grocery Department, as it was not in compliance with company standards. Plaintiff told Proctor that he did not feel comfortable as Grocery Manager because he felt his capabilities did not allow him to excel in the Grocery Department.
Proctor then moved Plaintiff to the position of Service Manager, where he supervised the front-end operation of the store. Plaintiff's duties included hiring, accounting, disciplinary procedures, and customer satisfaction. While serving as Service Manager, Plaintiff was counseled by Proctor about his management of cashiers who had problems balancing their tills and with cash shortages. Plaintiff also had difficulty communicating with his subordinates and was "deficient in hiring the right person for the right job" in the Service Department. In September of 2000, and again in October of 2000, Proctor counseled Plaintiff about his job performance being beneath United's standards. On December 3, 2000, Plaintiff was demoted to the position of Assistant Grocery Manager for failure to successfully perform his job duties and transferred to Store No. 546 in Abilene.
On December 21, 2000, Plaintiff, after having worked a full day, was asked to stay and help unload a truckload of merchandise that had arrived in the evening because there were insufficient personnel available to help. Plaintiff tried to find help but none was available. Plaintiff spoke with his immediate supervisor, Mr. Juven Nejara ("Nejara"), who told Plaintiff to go home since he had to open the next morning; otherwise, Plaintiff would have been at work for 24 hours straight. The next day the Chief Operating Officer for United, Mr. Bert Short ("Short"), told Nejara to fire Plaintiff.
Defendant's stated reasons for Plaintiff's termination were his history of poor job performance and ultimately his job abandonment on December 21, 2000. In response, Plaintiff contends that (1) Plaintiff's termination was contrary to the custom and practice of United; (2) "the inconsistency between [Defendant's] version and [Plaintiff's] make [sic] the explanation appear to be contrived"; (3) Defendant failed to procure testimony from Nejara; and (4) Plaintiff "had [the] permission of his supervisor to get a few hours [sic] sleep" and, again, Nejara "didn't attempt to deny he gave permission."
Defendant argues that uncontroverted evidence shows that it has met its burden of proof that it had legitimate, non-discriminatory reasons for its actions toward Plaintiff, i.e., that Plaintiff was terminated because he displayed a history of poor job performance and because of his job abandonment. Defendant contends that Plaintiff has failed to produce any evidence of pretext. Plaintiff responds that there are fact issues of whether Defendant's stated reasons for terminating Plaintiff are true or credible, thus requiring denial of Defendant's Motion.
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotes omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the non-moving party's case," Celotex Corporation v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
III. DISCUSSION
Plaintiff's suit against Defendant is brought under the ADEA, 29 U.S.C. § 623(a). Section 623 creates a private right of action against employers who engage in unlawful employment practices. It provides: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;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.29 U.S.C. § 623 (2000).
Plaintiff also filed suit under the TCHRA, TEXAS LABOR CODE §§ 21.001-.566. Analogous federal cases interpreting the ADEA are applicable to interpreting the TCHRA, and the burden-shifting analysis applied to ADEA cases is also applied in TCHRA cases. See Quantum Chem. Corp. v. Toennies, 47 S.W. 3d 473, 476-77 (Tex. 2001). Consequently, the analysis in this Opinion of Plaintiff's claims under the ADEA is applicable to his claims under TCHRA as well.
Following the recent Supreme Court opinion in Desert Palace, Inc. d/b/a Caesars Palace Hotel Casino v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003), a recent Fifth Circuit decision has modified the proper approach to analyzing an ADEA discrimination case, stating it as follows:
[T]he plaintiff must still demonstrate a prima facie case of discrimination; the defendant must articulate a legitimate, nondiscriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, the plaintiff must then offer sufficient evidence to create a genuine issue of material fact either (1) that the defendant's reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant's reason, while true, is only one of the reasons for its conduct, and another `motivating factor is the plaintiff's protected characteristic (mixed-motive[s] alternative)."Rachid v. Jack in the Box, Inc., 2004 WL 1427046 * 5 (5th Cir., June 25, 2004). Plaintiff's argument presumes that he has chosen to proceed under the pretext alternative.
In order to establish a prima facie case of discrimination, a plaintiff must prove that (1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced with a person who is not a member of the protected class. See Pegram v. Honeywell, 361 F.3d 272, 281 (5th Cir. 2004); Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). Proof of a prima facie case raises an inference of discrimination and, in the absence of further evidence, creates a mandatory presumption in favor of the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 528, 113 S. Ct. 2742, 2758, 125 L. Ed. 2d 407 (1993). However, once an employer meets its burden of production to put forward a legitimate, nondiscriminatory reason for its adverse employment action, the presumption provided by the prima facie case "drops from the case." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n. 10, 101 S. Ct. 1089, 1095 n. 10, 67 L. Ed. 2d 207 (1981).
Defendant has not disputed Plaintiff's prima facie case. Rather, the dispute here arises regarding the credibility of Defendant's stated reasons for Plaintiff's termination and whether those reasons were legitimate and non-discriminatory or whether they were simply a pretext for discrimination. Defendant has asserted that it terminated Plaintiff for his history of poor job performance and ultimately because of his job abandonment. In support of its reasons, Defendant provides summary judgment evidence that Plaintiff was counseled on multiple occasions about his inadequate job performance. (Def.'s App., Ex. 9, Proctor Aff. ¶¶ 2,3; Ex. 16, Petross Dep. at 130-33). Problems that contributed to Plaintiff's poor performance evaluation included his inability to control cash shortages, his difficulties in hiring employees, his difficulties in communicating with his employees, and his difficulties in processing paperwork. ( Id.). Ultimately, Plaintiff's termination arose out of what Short, Defendant's Chief Operating Officer, deemed to have been job abandonment for failure to stay and help unload inventory on the night of December 21, 2000, during the midst of United's busy Christmas season. (Def.'s App., Ex. 10, Short Aff. ¶ 2).
Although Plaintiff originally answered in the negative when asked "[w]ere you asked to stay at the store that night to help unload everything," Plaintiff thereafter stated that Mr. David Perkins ("Perkins"), whom Plaintiff refers to as the "head stocker", made the comment "why don't you stay and help" (Petross Dep. at 148).
Defendant further contends that it is entitled to the "same actor" inference of no discrimination because the same person both hired and was involved in the adverse employment action against Plaintiff. Under the same actor defense, there is an inference that "where the same person does the hiring and firing of an individual, the firing was not likely to have been a result of improper discriminatory motive." Tellepsen Pipeline Servs. Co. v. Nat'l Labor Relations Bd., 320 F.3d 554, 570 (5th Cir. 2000). Although it is undisputed that McKenzie was the person who hired Plaintiff, the evidence shows that it was Short and Nejara who were involved in Plaintiff's termination. Absent evidence of McKenzie's involvement, the "same actor" inference is unavailable.
Defendant having met its burden of producing a legitimate, nondiscriminatory reason for demoting Plaintiff and evidence of the same, the burden now shifts back to Plaintiff to produce evidence that would be sufficient to persuade a jury that United's proffered legitimate, nondiscriminatory reasons are a pretext for discrimination against him because of his protected status. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed. 2d 105 (2000). In order to survive summary judgment, Plaintiff is required to offer proof to rebut each of the defendant's articulated reasons. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001). A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer's proffered reason is "unworthy of credence." Id. Furthermore, a showing of pretext does not automatically entitle an employee to a judgment as a matter of law. See St. Mary's, 509 U.S. at 524. The plaintiff must provide "sufficient evidence to find that the employer's asserted justification is false." Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000) (quoting Reeves, 530 U.S. at 2109). However, it is not enough that there is some evidence that would allow a jury to disbelieve the employer's proffered nondiscriminatory reason; rather, the evidence must be sufficient to enable a jury to believe the plaintiff's explanation of intentional discrimination. See St. Mary's, 509 U.S. at 519. "An employer is entitled to judgment as a matter of law on this ultimate question `if the evidence taken as a whole would not allow a jury to infer that the actual reason for the [employer's decision] was discriminatory.'" Vadie v. Miss. State Univ., 218 F.3d 365, 372 (5th Cir. 2000) (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc)).
In his Response, Plaintiff states, "Defendant [has] erroneously assert[ed] that it terminated [Plaintiff's] employment because of a history of poor job performance and ultimately for job abandonment." (Pl.'s Resp. to Def. Mot. for Summ. J. at 11). Plaintiff asserts that Defendant's claim of job abandonment is not true or credible because the evidence shows that in order for Plaintiff to have stayed to unload the truck, he would have been required to work 24 hours straight through and that Nejara gave him permission to go home. (Pl.'s App., Ex. 2, Petross Aff. ¶¶ 6, 7). Plaintiff further provides that "[t]he unusual factor was that upper level management [Short] applied discipline, not to the store manager [Nejara], but to his subordinate, [Plaintiff]." (Pl.'s Resp, to Def. Mot. for Summ. J. at 11). In connection with this, Plaintiff points to an affidavit of Charles Jackson, in which Jackson states that with regard to Plaintiff's alleged job abandonment, Jackson had never heard of a more unfair and uncustomary approach. (Pl.'s App., Ex. 1, Jackson Aff. at 5-6 ¶ 11 and at 8 ¶ 7).
The Fifth Circuit has explained that "if age does not motivate the employer's decision, then a discharge may well be unfair or even unlawful yet not be evidence of age bias." See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1994); see also Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1165 (5th Cir. 1993) (explaining that "[t]he ADEA was not intended to be a vehicle for judicial second-guessing of business decisions, nor was it intended to transform the courts into personnel managers"); Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988) ("[t]he ADEA cannot protect older workers from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated"). Jackson's statement is not proof that Defendant's reason for firing Plaintiff for job abandonment was contrary to company policy and procedure. Plaintiff's evidence does not challenge the credibility of Defendant's decision to fire him, only its fairness under the circumstances. Nothing about the evidence surrounding the circumstances of Plaintiff's firing suggests an unlawful motive.
Although Plaintiff cites to "supplemental employment records" (apparently referring to records of the Texas Workforce Commission) which, he alleges, support his contention that Defendant's job abandonment claim was not credible (citing Pl.'s App., Ex. 19), the finding of the Commission only established that Plaintiff's actions did not amount to "misconduct" as defined in the relevant law and that he was not disqualified from receiving unemployment benefits.
Plaintiff also produces deposition testimony that McKenzie once told a manager to replace an employee "because she was getting too old" and she "couldn't cut the mustard too much anymore." (Jackson Aff. at 55). Although a jury is permitted to infer discriminatory animus from age-related comments, Laxton v. Gap, Inc., 333 F.3d 572, 583 (5th Cir. 2003), nevertheless, in an employment discrimination action, stray remarks are probative of discriminatory intent only if they are coupled with other evidence of pretext, Palasota v. Haggar Clothing Company, 342 F.3d 569, 577 (5th Cir. 2003). Because Plaintiff has failed to provide any other evidence establishing pretext, Defendant's oral remarks are Plaintiff's only evidence. Accordingly, the Court determines that the remarks are not probative that Defendant's reasons are pretextual. Further, the remarks are not even directed at Plaintiff but refer to someone else altogether. They are no evidence of any discriminatory animus against Plaintiff himself.
Neither are the remarks helpful as additional evidence of discrimination to shore up Plaintiff's pretextual case once the presumption of discrimination provided by the prima facie case has dropped away under the McDonnell Douglas framework. Subsequent to the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., repudiating the "pretext-plus" approach, a plaintiff is no longer required to produce additional evidence of discrimination beyond his prima facie case and a showing of pretext. Reeves, 530 U.S. 133, 146, 120 S. Ct. 2097, 2108, 147 L. Ed. 2d 145 (2000). However, such additional evidence may be necessary to shore up Plaintiff's case once the prima facie presumption has disappeared, if Plaintiff's showing of pretext is particularly weak. See id. at 148 (acknowledging instances where "the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination occurred."); see also Vadie, 218 F.3d at 372. Here, as the Court has previously determined, Plaintiff has created no issue of fact, much less a weak one, regarding Defendant's reasons.
Plaintiff attempts to produce statistical evidence of discrimination, in the form of a list created by Charles Jackson, regarding age-protected individuals who were demoted/terminated and subsequently replaced by younger individuals. Although "[s]tatistical evidence can be utilized by an individual disparate treatment plaintiff to help rebut the employer's nondiscriminatory explanation, more than statistics are usually necessary to rebut an employer's strong showing of a legitimate, non-discriminatory reason for discharging a particular employee." Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999) (internal citation omitted). Of course, in the context of an employment discrimination suit with its shifting burdens of proof and production, the nonmovant should be provided a meaningful opportunity to respond to a motion for summary judgment. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 593-94 (11th Cir. 1987). As a general rule, "when the defendant has offered evidence of a legitimate, nondiscriminatory reason for its employment decision, the plaintiff should not be denied the opportunity to submit additional evidence of pretext after seeing the defendant's evidence of justification." Id. at 594; see also Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985) (noting that until the movant's supporting affidavits were filed, the nonmovant could not know what facts she needed to controvert).
It is noteworthy that, when deposed, Jackson stated he had no personal knowledge, aside from stray remarks, of any discrimination against Plaintiff. (Jackson Dep. at 99-100).
Ignoring entirely the issue of the reliability of Plaintiff's purported statistical evidence of age discrimination, the Court simply notes that nothing prevented Plaintiff from producing this evidence in conjunction with his Response. Although the Court granted leave to both parties to file reply briefs, the purpose of those briefs was not for the introduction of additional evidence, but to respond with additional argument to evidence already presented. The Court is not required to, nor will it, permit an endless game of back and forth with regard to evidence once summary judgment is appropriate. Indeed, were the Court to consider this evidence, Defendant would need an opportunity to reply to the evidence to challenge its reliability or even admissibility. Therefore, the Court will not consider Plaintiff's statistical evidence.
Plaintiff provides no evidence of Defendant's discriminatory intent and practice other than his conclusory statements and subjective belief. An employee's mere subjective belief that he has been the subject of discrimination, unsupported by any specific factual evidence, is insufficient to rebut the employer's evidence of legitimate, nondiscriminatory reasons for its actions. Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir. 2000); see also Lowery v. Univ. of Houston, 82 F. Supp. 2d 689, 696 (S.D. Tex. 2000) ("Speculation and belief are insufficient to create a fact issue as to pretext, and pretext cannot be established by mere `conclusory statements of a plaintiff who feels [that he] has been discriminated against'") (quoting E.E.O.C. v. Exxon Shipping Co., 745 F.2d 967, 976 (5th Cir. 1984)).
When asked, "You don't have any direct evidence that age discrimination played a part in [the] decision-making process [leading to your termination], do you," Plaintiff responded, "I do . . . I guess you might say it's just my feeling." ( See Petross Dep. at 148, ll. 15-22).
Additionally, Plaintiff erroneously seeks to have inferences drawn from subsequent actions of, and the absence of an affidavit from, Nejara. In response to Defendant's labeling Plaintiff's actions on December 21, 2000, as "misconduct," Plaintiff claims that "[t]he affidavits and deposition testimony to the contrary, reflect that the store manager, Nejara, did not give an affidavit that shows misconduct of [Plaintiff]." Plaintiff further points out that Nejara quit shortly after Plaintiff's termination and attempts to use this as evidence supporting an inference that Nejara was disappointed about the treatment of Plaintiff and that this disappointment could have been a motivating factor in Nejara's decision to quit. For these claims to be evidence from which inferences could be drawn on the basis of non-production, it would have to have been peculiarly within the power of Defendant to produce the evidence. See United States v. Lehmann, 613 F.2d 130, 136 (5th Cir. 1980). There is nothing in the pleadings to suggest either that Defendant has control over Nejara or that Plaintiff, if he so desired, could not have obtained an affidavit from Nejara. Furthermore, Defendant's failure to produce deposition testimony favorable to Plaintiff cannot be used as evidence for Plaintiff, when Plaintiff at all times bears the burden of proof on the issue of pretext.
Plaintiff submits that "Nejara . . . became upset and left United . . . a short time later." (Pl.'s Sur-Reply to Def.'s Mot. for Summ. J. at 5). In support, Plaintiff contends that he has personal knowledge of the validity of this assertion. (Pl.'s Supp. App., Ex. 2, ¶ 3). Plaintiff's purported awareness that Nejara's being "upset" led to his leaving United, without more, is not evidence that would support what Plaintiff truly seeks, which is an inference that Nejara was upset over the treatment of Plaintiff.
Plaintiff's purported evidence does not create a genuine issue of fact regarding whether Defendant's decision to terminate Plaintiff for job abandonment was pretext for age discrimination. Even if this Court were to find that his evidence constituted something more than a mere scintilla, Plaintiff's argument still fails because he has not produced evidence rebutting each of Defendant's articulated reasons as he is required to do. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001). Plaintiff has failed to produce any summary judgment evidence challenging Defendant's evidence of poor job performance. In fact, Plaintiff admits the factual basis for Defendant's poor job performance evaluation in his own deposition testimony. (Def.'s App., Ex. 16, Petross Dep. at 129-33). Consequently, Plaintiff has failed to establish pretext by showing that each of United's proffered reasons is "unworthy of credence."
Lastly, although the Court's analysis thus far has presumed that Plaintiff has chosen to proceed under the pretext alternative, the Court must address Plaintiff's argument that he need only "establish that age played a role in his demotion or termination, not that age was the sole reason for the demotion and/or termination," citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc). This argument is based in the mixed-motive alternative, which assumes the truth of an employer's reason while maintaining that sufficient evidence exists that a discriminatory animus was also a motivating factor in the adverse employment decision. See Rachid, 2004 WL 1427046 at *3 (holding further that mixed-motive analysis applies to ADEA cases). A plaintiff is not precluded from proceeding under both frameworks. See Price Waterhouse v. Hopkins, 490 U.S. 228, 243 n. 12, 109 S.Ct. 1775, 1787 n. 12, 104 L. Ed. 2d 268 (1989). Since the Supreme Court's recent decision in Desert Palace, Inc. d/b/a Caesars Palace Hotel Casino v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L.Ed. 2d 84 (2003), a plaintiff is no longer required to produce direct evidence of discriminatory animus but may offer circumstantial evidence as well. Id. at 100-01. However, the evidence a plaintiff does produce, whether direct or circumstantial, must be "sufficient for a jury to conclude, by a preponderance of the evidence, that [a prohibited characteristic] was a motivating factor for any employment practice." Id. at 101. None of the evidence produced by Plaintiff and examined by the Court under Plaintiff's pretext alternative above would be sufficient if utilized under the mixed-motive alternative, nor has Plaintiff produced any additional evidence of a discriminatory animus by Defendant against him.
IV. CONCLUSION
For the foregoing reasons, the Court determines that Defendant is entitled to summary judgment as a matter of law on all Plaintiff's claims. Therefore, this Court GRANTS Defendant's Motion for Summary Judgment. All other pending motions are DENIED as moot.
SO ORDERED.