The opinion of the court was delivered by: Honorable Edward J.Lodge U. S.District Judge
Pending before the Court in the above-entitled matter are the Defendant's Motion for Summary Judgment and Motion to Strike. The parties have filed responsive briefing and the matters are now ripe for the Court's review. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motions shall be decided on the record before this Court without oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiff, Sharon Brockbank, worked for Defendant U.S. Bancorp ("U.S. Bank") in Boise, Idaho in various positions for nearly thirty years. (Dkt. No. 1.) After receiving a poor performance review from her supervisor Michael Sullivan in 2007, Ms. Brockbank contacted U.S. Bank's Regional Manager, Robert Tiedemann, complaining of gender and age discrimination. (Dkt. No. 1.) As a result, Ms. Brockbank alleges Mr. Sullivan retaliated against her by requiring her to meet specific goals under an "Action Plan" that was not required of other younger male employees. (Dkt. No. 1.) Shortly thereafter, Ms. Brockbank filed a charge with the Idaho Human Rights Commission ("IHRC") and Equal Employment Opportunity Commission ("EEOC") and ultimately she filed the Complaint in this case.
On March 18, 2009, U.S. Bank terminated Ms. Brockbank's employment. U.S. Bank maintains the reason for her termination was Ms. Brockbank's misuse of her corporate credit card for personal expenses in violation of U.S. Bank's policies. Ms. Brockbank disputes this reason and argues, instead, that her termination was discriminatory and retaliatory based on her gender and age; Ms. Brockbank was a 62 year old female at the time of her termination. As a result, on January 30, 2009, Ms. Brockbank, initiated this action by filing a Complaint alleging claims for 1) Gender Discrimination and Retaliation pursuant to Title VII, 42 U.S.C. § 2000e-1 et seq. and 2) Age Discrimination in violation the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., ("ADEA"). (Dkt. No. 1.)
Ms. Brockbank alleges she was treated differently from other younger male employees with less experience to whom Mr. Sullivan gave preferential treatment. In particular, she claims, Mr. Sullivan delegated the new lucrative clients to the younger male employees instead of Ms. Brockbank and authorized reimbursements for business expenses for the younger male employees but refused similar reimbursements to Ms. Brockbank. In addition, Ms. Brockbank alleges Mr. Sullivan made comments regarding her appearance in reference to her age. U.S. Bank has filed the instant Motion for Summary Judgment and Motion to Strike which the Court now takes up.
SUMMARY JUDGMENT STANDARD
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that "[t]he 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. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a).*fn1 "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
The party moving for summary judgment has the initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986). Once the moving party has met this initial burden, the nonmoving party has the subsequent burden of presenting evidence to show that a genuine issue of fact remains. The party opposing the motion for summary judgment may not rest upon the mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id. at 248. If the non-moving party "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" then summary judgment is proper as "there can be no 'genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).*fn2
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue, before it may be considered "genuine," must be established by "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib. V. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th Cir.1989).
According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party
(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of eitherparty; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party's claim implausible.
Id. at 374 (citation omitted). Of course, when applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).
I. Legal Analysis Framework
Both the ADEA and Title VII claims raised in the Complaint utilize the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Bergene v. Salt River Project Agr. Imp. and Power Dist., 272 F.3d 1136, 1140 (9th Cir. 2001) (Title VII discrimination cases also employ a "system of shifting burdens." ); Wallis v. J.R. Simplot, 26 F.3d 885, 889 (9th Cir. 1994). Under this framework, Ms. Brockbank bears the initial burden of demonstrating the elements of the prima facie case for each of her claims which can be accomplished through either direct or circumstantial means. See Coleman v. The Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). Upon making this showing, the burden then shifts to U.S. Bank to produce evidence of a legitimate, nondiscriminatory reason for its action. See Enlow v. Salem-Keiser Yellow Cab, Inc., 389 F.3d 802, 813 (9th Cir. 2004)("[I]f an employee presents prima facie circumstantial evidence of discrimination, the burden shifts to the employer to produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason."); Bergene, 272 F.3d at 1140. The burden then reverts back to Ms. Brockbank to establish that U.S. Bank's legitimate nondiscriminatory reason for termination was merely pretext and that discrimination more likely motivated its decision to terminate. See Pottenger v. Potlatch Corp., 329 F.3d 740, 747 (9th Cir.2003). The Court will analyze each claim under this frameworkbelow.
The ADEA directs that employers may not "fail or refuse to hire or...discharge any individual [who is at least forty years old] 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). There are "two theories of employment discrimination: disparate treatment and disparate impact." Enlow, 389 F.3d at 812 (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993). Ms. Brockbank's claim here alleges disparate treatment.
"Disparate treatment is demonstrated when [t]he employer simply treats some people less favorably than others because of their race, color, religion [or other protected characteristics]." Endow, 389 F.3d at 811 (internal quotations and citations omitted). The Supreme Court has instructed that "liability [in a disparate treatment claim] depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)). Thus, "the plaintiff's age must have actually played a role in [the employer's decision-making] process and had a determinative influence on the outcome." Id. (citation omitted). Ms. Brockbank can prove her prima facie case by either direct evidence of discriminatory intent or ...