IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

MICHAEL ORR,

Plaintiff,

Case No. 8:08CV538

v.

THE AUTO CLUB GROUP AND AAA

NEBRASKA,

Defendants.

This Brief is submitted in support of Defendant's Motion for Summary Judgment, which was filed contemporaneously herewith. This Motion seeks summary judgment on Plaintiff’s

Complaint, in its entirety, for the reasons that there are no genuine issues of fact and that Defendant is entitled to judgment as a matter of law.

Plaintiff Michael Orr ("Plaintiff" or "Orr") was hired by Defendant The Auto Club Group d/b/a AAA Nebraska ("Defendant" or "AAA") (incorrectly identified in the Complaint as two

separate parties), on September 19, 2005, as a Supervisor Processing Services. AAA, among other things, is engaged in the business of selling auto and life insurance products as well as auto

club memberships.

Plaintiff's chief complaint is that Peggy Davis ("Davis"), his immediate supervisor, yelled at him in front of his subordinates but did not do so with two (2) similarly situated female

supervisors. Plaintiff contends that although he approached Davis' supervisor and a member of AAA's Human Resources Department about Davis' conduct, his complaints fell on deaf ears, and

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Davis continued to harass him. On June 8, 2007, Plaintiff resigned from AAA immediately, without prior notice.

On August 27, 2007, Plaintiff filed an administrative Charge of Discrimination with the Nebraska Equal Opportunity Commission ("NEOC") (dually filed with the U.S. Equal

Employment Opportunity Commission ("EEOC")), alleging that he was discriminated against on the basis of sex, endured a hostile work environment, was retaliated against for making

complaints to management, and was forced to resign. On August 21, 2008, following its investigation, the NEOC issued a No-Cause Determination, dismissing Plaintiff's Charge against

Defendant. Thereafter, on September 30, 2008, the EEOC issued a "Notice of Rights" (a/k/a right-to-sue letter) regarding the Charge.

harassment based upon a hostile work environment and a claim for constructive discharge (Filing No. 18, at 1).

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In support of this motion, Defendant has, as part of its Index of Evidence (NECivR 7.1

(a)), submitted the following evidence:

S.J. Ex. 1 Deposition of Plaintiff Michael Orr, taken on October 8, 2009.

S.J. Ex. 2 Cassie Wilkins' Letter of Resignation, dated March 13, 2007. (Identified at

S.J. Ex. 10 ¶ 17, at 3.)

S.J. Ex. 3 E-mail Message from Peggy Davis to Plaintiff, Emily Young, and Amber

Wassom, dated March 28, 2007. (Depo of Pl. Ex. 7, identified at S.J. Ex. 1, at 81:16-25.)

S.J. Ex. 4 Plaintiff's Letter of Resignation, dated June 8, 2007. (Depo. of Pl. Ex. 11,

identified at S.J. Ex. 1, at 116:23-117:2.)

S.J. Ex. 5 E-mail Message from Plaintiff to Marilu Baker, dated June 8, 2007.

(Identified at S.J. Ex. 11 ¶ 3, at 1.)

S.J. Ex. 6 E-mail Message from Plaintiff to Michael Tetrick, dated June 8, 2007.

(Identified at S.J. Ex. 11 ¶ 3, at 1.)

S.J. Ex. 7 Charge of Discrimination by Michael Orr, filed with the Nebraska Equal

Opportunity Commission (dually filed with the U.S. Equal Employment Opportunity

Commission), dated August 27, 2007. (Depo. of Pl. Ex. 10, identified at S.J. Ex. 1, at 91:16-21.)

S.J. Ex. 8 No-Cause Determination Letter issued by the Nebraska Equal Opportunity

Commission, dated August 21, 2008, and "Notice of Rights" Letter issued by the U.S. Equal

Employment Opportunity Commission, dated September 30, 2008. (Identified at S.J. Ex. 11 ¶¶

4-5, at 1-2.)

S.J. Ex. 9 Affidavit of Peggy Davis, dated November 20, 2009.

S.J. Ex. 10 Affidavit of Mary Wagner, dated November 20, 2009.

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S.J. Ex. 11 Affidavit of Sherman P. Willis, dated November 20, 2009.

Based upon the undisputed evidence in this case, it is clear that there are no genuine issues of material fact and that Defendant is therefore entitled to judgment as a matter of law.

Pursuant to NECivR 56.1(a), the following statement of uncontroverted material fact is submitted in support of this Motion:

1. Plaintiff Michael Orr ("Plaintiff" or "Orr"), male, is a resident of the State of Nebraska. (S.J. Ex. 1, at 3:22-24; Filing No. 1 ¶ 4, at 1.)

2. Peggy Davis ("Davis"), female, was, at all times relevant to this litigation, Manager Processing Services and Plaintiff's immediate supervisor. (S.J. Ex. 9 ¶ 3, at 1; S.J. Ex.

3. Amber Wassom ("Wassom"), female, was, at all times relevant to this litigation, a Supervisor Processing Services and one of Plaintiff's coworkers. (S.J. Ex. 10 ¶ 4, at 1.) Wassom,

who held the same title as Plaintiff, was responsible for membership. (S.J. Ex. 1, at 15:3.)

4. Emily Young ("Young"), female, was, at all times relevant to this litigation, a Supervisor Processing Services and one of Plaintiff's coworkers. (S.J. Ex. 10 ¶ 5, at 1.)Young,

who also held the same title as Plaintiff, was responsible for application processing (S.J. Ex. 1, at

13-14.)

10 ¶ 6, at 1.)

6. Mary Wagner ("Wagner"), female, was, at all times relevant to this litigation, a Human Resources Generalist for The Auto Club Group. (S.J. Ex. 10 ¶ 2, at 1.)

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7. Marilu Baker ("Baker"), female, was, at all times relevant to this litigation, Lead Processing Clerk and one of Plaintiff's subordinates. (S.J. Ex. 10 ¶ 7, at 1.)

8. Cassie Wilkins ("Wilkins"), female, was, at all times relevant to this litigation, a Cash Processing Clerk and one of Plaintiff's subordinates. (S.J. Ex. 10 ¶ 8, at 1.)

9. Effective September 19, 2005, Plaintiff was hired by AAA for the position of Supervisor Processing Services. (S.J. Ex. 9 ¶ 3, at 1; S.J. Ex. 10 ¶ 9, at 2.) Davis and Wagner,

both females, interviewed Plaintiff (S.J. Ex. 1, at 29:7-18.)

10. As Supervisor Processing Services, Plaintiff was responsible for cash processing.

(S.J. Ex. 1, at 29:23-24.)

11. During the course of his employment with AAA, Plaintiff received two performance reviews (Partners in Performance Planning and Assessment Forms, or "PIPs"). (S.J.

Ex. 10 ¶ 10, at 2.) Davis completed Plaintiff's performance reviews in January 2006 and January 2007. (S.J. Ex. 1, at 32:7-11; S.J. Ex. 9 ¶ 4, at 1.) Plaintiff does not dispute Davis' comments in

these evaluations. (S.J. Ex. 1, at 32:12-25, 71:25-72:10.)

12. On or about February 20, 2007, Orr approached Wagner and spoke with her about the following issues he had with Davis:

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13. On February 20, 2007, Wagner spoke with Davis regarding Plaintiff's concerns, and Wagner advised Davis that she should talk with Plaintiff in a conference room away from

staff.(S.J. Ex. 9 ¶ 5, at 1; S.J. Ex. 10 ¶ 12, at 2.)

14. On March 14, 2007, Wagner met with Plaintiff and Davis regarding several performance issues with Plaintiff's work and how he managed his staff. As a result of this

meeting, Plaintiff agreed to respond more quickly to E-mail messages he received and to discipline his subordinates who are not performing. (S.J. Ex. 9 ¶ 6, at 1; S.J. Ex. 10 ¶ 13, at 2.)

15. On March 28, 2007, Davis sent Plaintiff an E-mail message, informing him that the PIP forms for the employees he supervised were due and to be completed and presented

16. On or about April 4, 2007, after several queries from Davis, Plaintiff submitted the PIP forms. Davis advised Plaintiff that the PIP forms he had submitted were not acceptable

because they were sample forms instead of forms specifically for the clerks and specialists on his team. In response to the fact that he would not meet this performance objective, Plaintiff

shrugged his shoulders and said: “Well, yeah, I won’t make it.” (S.J. Ex. 9 ¶ 7, at 2.) (What Davis left out was "I won't make it since I am due for surgery tomorrow morning".)

17. In the April 4, 2007 meeting, Davis told Plaintiff that she did not believe he was taking their counseling sessions seriously because he continued to fall short of her performance

expectations. (This meeting never happened. Another lie from Davis.) Davis had met previously with Plaintiff on her own (This meeting never happened) and she met with Tetrick regarding her c

oncerns about Plaintiff's performance. In response, Plaintiff did not express concern about the performance issues Davis outlined and, instead, demonstrated an attitude of unconcern with responses

such as, “Yeah, I know.” ( I never made such a statement . This is another lie.) (S.J. Ex. 9 ¶ 8, at 2.)

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18. From April 4, 2007, to May 4, 2007, Plaintiff was on a medical leave of absence for back/shoulder surgery. (S.J. Ex. 9 ¶ 9, at 2; S.J. Ex. 10 ¶ 14, at 2.)

19. On May 7, 2007, Plaintiff returned to work but was restricted to sedentary work, i.e., no lifting over ten (10) pounds and minimal typing as tolerated. AAA met those restrictions.

(S.J. Ex. 10 ¶ 15, at 2.) (Not true. AAA never met the restrictions. In fact, Davis insisted that I answer all email status request and not request my clerks to complete the request.)

20. Upon returning to work, Davis told Plaintiff not to reply to the E-mail messages delivered to his Inbox while he was on medical leave because they had already been handled by

other AAA staff. (S.J. Ex. 9 ¶ 10, at 2.) (However, Davis constantly referred to emails during this time. She wanted to know if I had responded to certain ones. Then was noticeable

upset when I reminded her that she told me to not respond to them, that they had already been taken care of.)

21. On May 14, 2007, one week after Plaintiff returned to work, Davis asked him to resume preparing work management reports, which were a part of his work duties. These reports

had been delegated to Baker, one of Plaintiff's subordinates, during Plaintiff's medical leave, as a back-up procedure until Plaintiff returned to work. Plaintiff advised Davis that he would take

over the work management reports going forward. However, on June 4, 2007, Davis advised Plaintiff that his subordinate was still running the reports, in direct contravention of Davis'

instructions. (S.J. Ex. 9 ¶ 11, at 2.) (When the clerk was asked why she completed the report, she stated she did it without thinking since she had done it before. She apologized for

completed the report. But Davis did not want to here her apology. )

22. On May 22, 2007, Davis and Tetrick met with Plaintiff to discuss Plaintiff's continuing work performance issues. (Peggy and I never met with Tetrick to discuss any performance issues.

In fact, Davis would meet with Tetrick and not allow me to speak with him at all. ) At this time, Plaintiff had still not completed the 2007 PIPs for his employees. Davis again reminded Plaintiff that his

 subordinates needed to be informed of the expectations and objectives they were required to meet. In response, Plaintiff stated that it was “no big deal,” that the staff already knew what their jobs were,

and that he could have them backdate their PIPs. When Davis advised Plaintiff that this attitude was not acceptable, he responded that he had been too busy responding to a large volume of E-mail

messages and that

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he did not have time to complete the PIPs. Davis instructed Plaintiff to send her copies of his Email messages, but he failed to do so. (This statement is not true. I copied Davis on all emails that I

responded to. Davis requested this after my return to work after surgery.  I believe she was concerned that I was talking to others about the violations I accused her of. ) (S.J. Ex. 9 ¶ 12, at 2.)

23. Both before and after Plaintiff's medical leave of absence, other AAA employees had to correct Plaintiff’s work constantly, and Davis had to remind Plaintiff to complete his assigned duties.

In particular, Davis continually had to monitor Plaintiff's performance much more closely than Wassom and Young (the other Supervisors Processing Services) for the following reasons:

(S.J. Ex. 9 ¶ 13, at 3.)

24. On June 6, 2007, Plaintiff told Wagner that he had given Davis his template for his subordinates' PIPs before he went on medical leave. Plaintiff also stated that he felt he could

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not work with Davis, and he stated that he would probably resign. However, Plaintiff never stated to Wagner that he believed Davis’ alleged treatment of him was based on his sex, that

Davis treated similarly situated female employees more favorably, that Davis was harassing him by creating a hostile work environment, or that Davis was retaliating against him because he

complained to Wagner earlier. (S.J. Ex. 9 ¶ 14, at 3; S.J. Ex. 10 ¶ 16, at 2.)

25. On June 8, 2007, Plaintiff resigned without notice and left work immediately. (S.J. Ex. 4.) Plaintiff did not stay at work for two weeks following his resignation even though

his resignation letter says he is giving AAA two-week notice. (S.J. Ex. 1, at 118:3-119:8.)

26. Also on June 8, 2007, Plaintiff sent an E-mail message to Baker, which stated, among other things, the following:

(S.J. Ex. 5 (emphasis added); S.J. Ex. 1, at 101:22-102:12.)

27. Also on June 8, 2007, Plaintiff sent Tetrick an E-mail message stating that Davis "has been on my back for everything" and "did the same thing to Cassie Wilkins and Vanessa

Alzuri." (S.J. Ex. 6.) In fact, Plaintiff admitted that various AAA employees (male and female) reported having professional and/or personality conflicts with Davis, including Wilkins and

Vanessa Alzuri. (S.J. Ex. 1, at 36:23-42:4.)

28. On August 27, 2007, Plaintiff filed a Charge of Discrimination with the NEOC/EEOC, alleging that he was constructively discharged due to sex discrimination, sexual harassment based upon

hostile work environment, and retaliation. (S.J. Ex. 7.)

29. On August 21, 2008, following its investigation, the NEOC issued a No-Cause Determination, dismissing Plaintiff's Charge against Defendant. (S.J. Ex. 8.) Thereafter, on

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September 30, 2008, the EEOC issued a "Notice of Rights" (a/k/a right-to-sue letter) respecting the Charge. (S.J. Ex. 8.)

30. On December 30, 2008, Plaintiff filed the Complaint against AAA, alleging sex discrimination, hostile work environment, retaliation, and constructive discharge all pursuant to

Title VII. Plaintiff makes the following allegations without providing any context:

(Filing No. 1 ¶¶ 13-22, at 3-6.)

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31. Davis had also reprimanded Wassom and Young, Plaintiff's fellow female supervisors. (S.J. Ex. 9 ¶ 15, at 3.)

32. Wilkins, a AAA female employee who was one of Plaintiff's subordinates, resigned without notice on March 3, 2007, citing Davis as the reason: "There has been too much

conflict between me and Peggy Davis." (S.J. Ex. 2; S.J. Ex. 10 ¶ 17, at 3.) Plaintiff testified that Davis went into "uncontrollable rage" when Wilkins had previously requested time off for

medical reasons. (S.J. Ex. 1, at 75:15-77:4.)

33. Plaintiff testified that Baker complained to Plaintiff about how Davis was treating her and "being hard" on her. (S.J. Ex. 1, at 133:25-134:9.)

Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). It is an integral part of the federal rules designed to "secure

A moving party is entitled to summary judgment if the evidence, viewed in the light most favorable to the non-moving party, shows that no genuine issue of material fact exists and the

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If the non-moving party fails to make a sufficient showing on "every essential element of its case on which it bears the burden of proof, the court should resolve the dispute on summary

This Court set forth the applicable standard for summary judgment as follows:

In order to withstand a motion for summary judgment, the nonmoving party must substantiate their allegations with “‘sufficient probative evidence [that] would

permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy.’” “A mere scintilla of evidence is insufficient to avoid summary

judgment.” Essentially the test is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.”

reasons, and Plaintiff has not established that these reasons are pretextual.

As for Plaintiff's claim of sexual harassment based upon a hostile work environment, he provides no concrete evidence to support this claim, especially since similarly situated female

employees also had personality conflicts with Davis. Moreover, even assuming that Plaintiff

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available remedies.

Next, Plaintiff claims that Defendant retaliated against him for complaining to management about Davis' conduct and about possible violations of federal law in the way AAA

charged customer credit cards. The Court has determined that the portion of this claim that survived the Motion to Dismiss relates to alleged retaliation by Davis after Plaintiff complained

to management about Davis' harassment. However, Plaintiff cannot make out a claim of retaliation because he suffered no adverse employment action. Even if Plaintiff has established a

prima facie case of retaliation, Defendant has provided legitimate, non-discriminatory reasons for its actions, and Plaintiff has not established that Defendant's reasons amount to pretext.

Finally, regarding Plaintiff's constructive discharge claim, Plaintiff's allegations simply do not establish that working conditions were intolerable to the point that he was forced to

resign. Plaintiff also cannot show that AAA's actions were designed to make him quit. The evidence shows that Davis was merely reacting to Plaintiff’s poor job performance and attitude.

Accordingly, this Court should grant summary judgment to AAA on all of Plaintiff's claims.

Title VII prohibits an employer from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's

. . . sex.” 42 U.S.C. § 2000e-2(a)(1). "Title VII is violated when workplace harassment based on

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of the following: (1) he is a member of a protected group; (2) he was subjected to unwelcome sexual harassment; (3) the harassment was based upon sex; (4) the harassment affected a term,

"The underlying wrongful conduct 'must be sufficient to create a hostile environment, both as it would be viewed objectively by a reasonable person and as it was actually viewed subjectively

If and only if a hostile environment is shown to have existed, liability may attach to AAA if Plaintiff can show that AAA “‘knew or should have known of [Davis'] conduct and failed to

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F.3d 450, 461-62 (4th Cir. 1994) (same).

The standards for establishing a hostile work environment are relatively stringent:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find

hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not

actually altered the conditions of the victim’s employment, and there is no Title VII violation.

Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th Cir. 2002).

Title VII’s stringent standards are designed to “filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, genderrelated

Whether an environment is hostile or abusive can be determined only by looking at all of

the circumstances, which include the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

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In this case, Plaintiff concedes that he was not subjected to sexual overtures. (S.J. Ex. 1, at 47:23-48:2, 53:21-54:11, 54:18-21.) Rather, Plaintiff has alleged that Davis was “on [his] back

for everything.” Plaintiff claims that Davis yelled at him on numerous occasions, sent him Email messages repeatedly, and, when Plaintiff did nor respond to her messages, printed off the Email

messages, walked over to his cubicle, and shook the printed E-mail message in his face so where other AAA employees could see what she was doing. (S.J. Ex. 1, at 77:15-78:1, 79:19-25.)

These allegations, even if true, do not arise to the level of supporting a hostile work environment claim.

It is true that Davis counseled Plaintiff for performance issues, reminded him repeatedly to complete assignments, and reprimanded him when he failed to follow procedures. All of these

actions were necessitated by Plaintiff’s poor performance, not by his gender. Moreover, Plaintiff cannot support his allegations that Davis made the conditions of his employment so intolerable

that he was compelled to resign because of his gender.

There is no dispute but that other employees also had personality conflicts with Davis, without regard to gender. For example, Wilkins, a female Cash Processing Clerk under

Plaintiff’s supervision, suddenly resigned on March 3, 2007. Wilkins, herself, said she resigned because “[t]here has been too much conflict between me and Peggy Davis.” Plaintiff also

testified that Baker complained to Plaintiff about Davis' treatment of her and that Davis was "being hard" on her. Even assuming that Davis was a difficult boss, that information does not

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employee suffered no disparate treatment even though he testified that his supervisor was “harder” on him than coworkers, stating that the supervisor was “demanding,” but finding that

being "harder" on one subordinate than on others did not equate to discriminatory treatment).

Plaintiff did not endure, by any stretch of the imagination, "severe and pervasive" harassment. The Eighth Circuit has rejected such claims in cases with much stronger evidence of

unwelcome sexual advances on three separate occasions over a nine-month period, including asking the employee to watch pornographic movies with him, hugging and kissing, and grabbing

actionable hostile work environment where co-employee asked plaintiff if she would have a relationship with him, touched the plaintiff's hand on four to five occasions, requested the

plaintiff sketch a sexually objectionable planter, asked plaintiff to complete a task on his computer where its screen saver depicted a naked woman, hung an offensive poster, and asked

plaintiff to type a document for him containing sexually offensive items). Because Plaintiff's allegations of sexual harassment, even if accepted as true, do not rise to the level of being

"severe and pervasive" such that the terms, conditions, or privileges of Plaintiff's employment were altered, such allegations cannot form the basis of a sexual harassment claim under Title

VII. Therefore, Defendant is entitled to judgment as a matter of law.

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Not only does Orr fail to establish an objectively hostile environment based upon sex, but he cannot show that he complained about said discrimination. Moreover, even though Plaintiff

complained about Davis' criticisms of his work, he never advised Wagner that Davis was harassing him because of his gender. A defending employer can raise an affirmative defense to

avoid vicarious liability for a supervisor’s actions under a Title VII hostile work environment claim by showing the following: "(a) that the employer exercised reasonable care to prevent and

correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by

the following:

If the plaintiff unreasonably failed to avail herself of the employer’s preventative or remedial apparatus, she should not recover damages that could have been

avoided if she had done so. If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if

damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.

Faragher, 524 U.S. at 806-07.

Plaintiff claims that Davis began harassing him in 2006. Yet, Plaintiff neither brought allegations of sexual harassment to AAA's attention nor provided Wagner or other AAA

personnel any information to put the company on notice that he was claiming sexual harassment.

(S.J. Ex. 10 ¶ 16, at 2-3.) Summary judgment, thus, is appropriate for this reason as well.

Plaintiff makes the following allegations in his Complaint to support this claim:

Other female supervisors of Defendant(s), two other supervisors, where Plaintiff was also a supervisor, were disciplined differently and less severely, if disciplined at all, for

making similar or equivalent insurance processing mistakes, yet these female employees were not given no other option but to resign.

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(Filing No. 1 ¶ 22, at 5-6.) Clearly, Plaintiff directs his allegations at the other two supervisors, Wassom and Young. (S.J. Ex. 1, at 44:4-8, 46:7-9.) Nonetheless, as shown below, each of

Plaintiff’s allegations under this claim is without merit.

following: (1) he was a member of a protected group, (2) he was performing his job at a level that met his employer's legitimate expectations, (3) he suffered an adverse employment action,

U.S. 977, 986 (1988).

employer's expectations, that he suffered an adverse employment action, or that similarly

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First, Plaintiff's performance failed to satisfy his employer's expectations as established by the affidavits of Wagner and Davis. (S.J. Ex. 9 ¶¶ 6-8, 11-13, 16, at 1-3; S.J. Ex. 10 ¶ 13, at

2.) Second, for reasons explained in more detail below, Plaintiff did not suffer an adverse employment action since he voluntary resigned and cannot establish a constructive discharge.

Finally, the evidence also shows that Davis reprimanded female employees just like she did Plaintiff. Davis reprimanded both Wassom and Young, Plaintiff's fellow supervisors.

Additionally, although Plaintiff complains that Davis was extraordinarily critical of his PIP documents, he admitted that he does not know if Davis was also critical of the PIP documents

that Wassom and Young submitted. (S.J. Ex. 1, at 98:21-99:24.) Plaintiff's own testimony shows that other employees, including females, had personality conflicts with Davis. Even more,

42:4.) In fact, Wilkins quit her job and cited Davis as the reason for the resignation. (S.J. Ex. 2.) Most telling, when asked at deposition why he thought Davis was discriminating against

him on the basis of sex, Plaintiff stated, without any specifics: "What else could it be?" (S.J. Ex. 1, at 45:12-24.) Plaintiff further admitted that gender, like religion, "[n]ever came up" in his

(2d Cir.) (finding that plaintiff's conclusory allegations that her supervisor “conspired to get rid

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of her” and that she “heard disparaging remarks about Jews, but, of course, don't ask me to pinpoint people, times or places" since "[i]t's all around us” were insufficient, without more, to

judgment is appropriate.

ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005). Again, there was no adverse employment action taken against Plaintiff since he voluntarily quit his job.

During the course of his employment, Plaintiff received repeated, justifiable admonitions from his supervisor for failing to perform essential job functions. Evidence of Plaintiff's poor

performance included the following:

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(S.J. Ex. 9 ¶ 6-8, 11-13, 16, at 1-3.) Davis' criticisms of Plaintiff's work performance are insufficient, without more, to establish that Plaintiff was constructively discharged and therefore

suffered an adverse employment action.

AT&T Techs., 995 F.2d 846, 850 (8th Cir. 1993). Absent evidence of discrimination, the courts are not empowered to intercede due to personality conflicts between employees.

Once a legitimate, non-discriminatory reason has been articulated, any inference of discrimination then drops from the case. The burden of production then shifts back to Plaintiff to

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omitted).

In determining whether pretext existed, the “‘inquiry is limited to whether the employer gave an honest explanation of its behavior,’ not whether its action was wise, fair, or correct.”

response to Defendant's legitimate, non-discriminatory reasons for being critical of Plaintiff's work, other than to postulate that these admonitions were tantamount to intentional sex

discrimination.

v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 135 (2000). In a Title VII disparate treatment claim, a plaintiff is required to prove that the defendant acted with discriminatory intent or

evidence that defendant intentionally discriminated against plaintiff because of his protected characteristic, i.e., that plaintiff's protected activity was an actual motivating factor in defendant's

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unsubstantiated allegations in a deposition is not sufficient to maintain a disparate treatment claim).

This case does not involve any evidence of intentional discrimination. Davis, as Plaintiff's supervisor, had the prerogative to criticize Plaintiff's unacceptable work performance

and attitude. In response, Plaintiff simply claims that Davis treated Plaintiff's fellow female supervisors differently, which he cannot support in terms of dates, locations, times, or manner,

that is indicative of sex discrimination. However, none of the allegations, even if supported by admissible evidence, rise to the level of sex discrimination, nor do they provide the required

nexus to show that Plaintiff was forced to quit his job was based upon sex discrimination. Based upon the foregoing, it is respectfully requested that the Plaintiff's claim of discrimination based

upon sex origin be dismissed with prejudice.

Plaintiff's next argues that Defendant (through Davis) retaliated against him because he complained to Wagner about Davis' harassment. Title VII provides, in pertinent part, as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an

unlawful employment 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.

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42 U.S.C. § 2000e-3(a). Plaintiff has no direct proof that Davis retaliated against him. Therefore, in the absence of direct evidence, Plaintiff's retaliation claim should also be analyzed pursuant to

McDonnell Douglas.

Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).

Under Title VII, protected activity comes in two varieties: (1) opposing an act of discrimination made unlawful by Title VII ("the opposition clause"), or (2) filing a charge or

236 F.3d 399, 407-08 (8th Cir. 2000). Plaintiff has alleged that he "opposed" unlawful sex discrimination by complaining to Wagner. In claiming protection under the opposition clause, an

Dist., 65 F.3d 98, 100 (8th Cir. 1995). In this case, Plaintiff cannot provide any evidence to support his claim that he complained to management about any alleged sexual harassment by

Davis. Thus, Plaintiff has not demonstrated that he engaged in protected activity.

Case: 8:08-cv-00538-LES-FG3 Document #: 26 Date Filed: 11/23/09 Page 25 of 30

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essentially abandoning his position without prior notification. Plaintiff reported verbally to Wagner that he believed that Davis wanted to isolate him or push him out, but this allegation is

insufficient to establish a retaliation claim. Again, Plaintiff must provide the Court with the time, place, and manner of the alleged discriminatory conduct to survive summary judgment. Although

Plaintiff's Complaint contains several alleged statements made by Davis, Plaintiff has not demonstrated how these statements, even if made, show retaliation. “Not all comments that may

167 F.3d 423, 426 (8th Cir. 1999). For example, “‘stray remarks in the workplace,’ ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers unrelated to the decisional process

statements to which Plaintiff has pointed relate to Davis' criticisms of Plaintiff's work performance and attitude.

between his complaint to Wagner and any alleged retaliation by Davis. This Circuit previously has held that the mere allegation of causal connection is insufficient to withstand a properly

Case: 8:08-cv-00538-LES-FG3 Document #: 26 Date Filed: 11/23/09 Page 26 of 30

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properly supported motion for summary judgment). As the Eighth Circuit has held repeatedly, "more than a temporal connection between the protected conduct and the adverse employment

and Plaintiff's claim of retaliation based upon Title VII must fail.

legitimate, non-retaliatory reason for the employer's decisions. As stated above, Defendant has articulated a legitimate, non-retaliatory reason for Davis' criticisms of Plaintiff's work.

Cir. 2002). Plaintiff can produce no evidence of pretext. As a result, Defendant is entitled to summary judgment on Plaintiff's retaliation claim.

Case: 8:08-cv-00538-LES-FG3 Document #: 26 Date Filed: 11/23/09 Page 27 of 30

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Finally, Plaintiff has alleged that he was "constructively discharged." The constructive discharge doctrine permits an employee to resign and be treated for damage purposes as having

Here, Plaintiff cannot establish a constructive discharge. Many courts require a plaintiff who alleges constructive discharge to demonstrate that the employer's actions were deliberate

only must the employee show that working conditions were intolerable in order to prove constructive discharge, he must also show that the employer's actions were intended to force the

meaning that the employee’s resignation must be a reasonably foreseeable consequence of the

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490, 494 (8th Cir. 1996) (“[T]o constitute a constructive discharge, the employer must deliberately create intolerable working conditions with the intention of forcing the employee to

quit and the employee must quit.”). In addition, proving that he was constructively discharged, a plaintiff must demonstrate that a reasonable person would find the working conditions

conditions were intolerable. It is clear that Davis was merely reacting to Plaintiff’s poor job performance and attitude. Orr even wrote to Baker that he “really did like working” at AAA.

Plaintiff further stated in his deposition, for the first time, that he wanted his former job back.

(S.J. Ex. 1, at 16:6-10.) Plaintiff's complaint to Baker, that Davis made the “thrill and fun working there” disappear, hardly qualifies as intolerable working conditions. And, Plaintiff's

Plaintiff is unable to support his allegations with specific facts demonstrating that a genuine issue of material fact exists. Based upon the foregoing argument, and based upon the

uncontroverted evidence now before the Court, there are no genuine issues of material fact and that Defendant is entitled to judgment as a matter of law. Defendant respectfully requests that the

Court grant its Motion for Summary Judgment and dismiss Plaintiff's Complaint in its entirety.

Case: 8:08-cv-00538-LES-FG3 Document #: 26 Date Filed: 11/23/09 Page 29 of 30

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THE AUTO CLUB GROUP D/B/A AAA

NEBRASKA, Defendant

/s/ Sherman P. Willis

Patrick J. Barrett #17246

Sherman P. Willis #23114

ATTORNEYS FOR DEFENDANT

500 Energy Plaza

409 South 17th Street

Omaha, NE 68102-2663

Telephone: (402) 341-6000

Fax: (402) 341-8290

E-mail: pbarrett@fslf.com

swillis@fslf.com

I hereby certify that on November 23, 2009, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the

following: Patrick McCormick, Suite 700, 319 South 17th Street, Omaha, NE 68102.

/s/ Sherman P. Willis

Patrick J. Barrett #17246

Sherman P. Willis #23114

ATTORNEYS FOR DEFENDANT

500 Energy Plaza

409 South 17th Street

Omaha, NE 68102-2663

Telephone: (402) 341-6000

Fax: (402) 341-8290

E-mail: pbarrett@fslf.com

swillis@fslf.com

W523880v4

Case: 8:08-cv-00538-LES-FG3 Document #: 26 Date Filed: 11/23/09 Page 30 of 30

I have example(s) where Peggy Davis (Manager) ordered the debit of a customers account without their prior knowledge. In the email(s) to (financial persons)

in Dearborn Michigan, AAA Nebraska's headquarters, Peggy Davis (Manager) states "I suspect (the customer) will call when she sees the charges hit, but we can go from there."

(Email removed because AAA complained about violations of confidentiality)

The customer did contact Peggy Davis (Manager) when she found that her account had been charged. The customer stated in her phone call that AAA did not

have the authorization to withdraw funds from her account. AAA had to pay the customers overdraft fees.

In the email from Peggy Davis (Manager) to (Others) it states "She (customer) stated we do not have the authorization to withdraw the money from her account;

she said she had already agreed to pay the money back in (specified amount). pmts; first payment to withdraw from her account on (specified date).

(Email removed because AAA complained about violations of confidentiality.)

Although I filed harassment charges against Peggy Davis (Manager), AAA Nebraska, and ACG Michigan, the judge ruled that I did not have enough proof

to prove harassment or hostile work environment. The charges were dismissed.

The Nebraska Department of Labor conducted their own investigation and found that I did all I could to stop the harassment. And I had no other choice but to quit my job.

I contacted the Banking and Finance Department in Lincoln, Nebraska.  But since there were no Nebraska customers impacted by the company operating and collecting funds within the boarders of Nebraska, it fell outside the jurisdiction of the Nebraska Department of Insurance.

When I called to find out what could be done. I was referred to the Michigan Department of Insurance to file a complaint.

Here is a copy of the complaint filed in Michigan on 01/04/2009.

I am attempting to have AAA change their policy, and contact those customers who did not authorize certain debits to their funds.

Sexual Harassment / Traumatizing Experience - Dead Battery

AAA Auto Insurance Sucks – What a bunch of morons!

Tow Rates Being Kept Down by AAA

AAA Sucks and I Want to Kill Auto Mechanics

AAA SUCKS

AAA customer service sucks

Triple A Blues

AAA Sucks

Could I speak to your supervisor please?

Shitty AAA sucks