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Thomas Glenwright, et al v. Xerox Corporation

December 14, 2011


The opinion of the court was delivered by: David G. Larimer United States District Judge



Plaintiffs, fifteen former managers and employees of defendant Xerox Corporation ("Xerox" or "the Company"), bring this action, through counsel, alleging employment discrimination based upon age and/or sex in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e), and the New York State Human Rights Law ("NYSHRL"), Executive Law § 296, et seq. Xerox now moves for summary judgment dismissing the Plaintiffs' claims (Dkt. # 37). For the reasons that follow, Xerox's motion for summary judgment is granted and the complaint is dismissed.


I. Xerox's Information Systems Policy and Training

In 2006, Xerox maintained a well-established policy regarding the use of its Information Technology Systems ("IT Policy"), including the use of its computer and e-mail systems. The IT Policy was contained in Xerox's Code of Conduct, which set forth the Company's expectations regarding its employees' behavior and ethics. The policy detailed the authorized use of Xerox's computers, e-mail, and software systems, and prohibited, inter alia, excessive personal use, chain e-mail or virus hoaxes, and "any form of pornography." Dkt. #39, Ex. A at 6-7. The IT Policy also specifically stated that employees who misuse the Company's information systems "may be subject to disciplinary action, including termination " Id.

Xerox also maintained a separate Human Resources Policy entitled "Appropriate Usage Electronic Information Systems" ("HR Policy"). The HR Policy required that Xerox's electronic information systems, including computers, were to be used in support of business purposes "in a manner that maintains system integrity, functionality, and the highest ethical and legal standards." Id., Ex. B. The HR Policy also contained a "prohibited use" provision, which disallowed employees from intentionally receiving, sending, viewing, downloading, or saving any "obscene or pornographic" material, or material that would otherwise violate Xerox Policies concerning non-discrimination and harassment. Id., Ex. B at 2. In addition, the HR Policy provided for "disciplinary action, up to and including termination" against employees that failed to comply with the terms of appropriate usage of Xerox's electronic information systems. Id.

Xerox's internet usage policies also made clear that employees had no expectation of privacy with regard to their use of the Company's computer equipment or its information systems. Xerox's policy on "Privacy Rights" expressly denied privacy protection for any personal information stored on Xerox equipment, and provide that the Company would have unlimited access to any information stored on its computers or servers. Dkt. #39, Ex. A at 7.

Xerox provided mandatory periodic training on its Code of Conduct to its employees, including Plaintiffs. Plaintiffs testified at their respective depositions that they were familiar with the Xerox policies regarding appropriate usage of its IT systems.

II. Investigation and Disciplinary Actions

In April 2006, a manager in the Supplies Delivery Unit ("SDU") at Xerox conducted a routine "disk scrub" of several servers in SDU in order to make space on those servers. In the process of conducting that scrub, pornographic material was discovered in the shared user drives belonging to three employees: Walter Lerminiaux, Michael Voight, and a third employee who is not a party to this action. As a result of those findings, Xerox launched an investigation to determine the origin and scope of the pornography. The investigation initially involved the aforementioned three employees, but over the course of the investigation, additional employees were found to have received, stored, and/or transmitted pornographic material. After those individuals were identified by Xerox Corporate Security, a joint effort between the Company's Corporate Security and Human Resources department resulted in individual interviews with all of the implicated employees. While the final disciplinary decisions were pending, individuals whose e-mail accounts contained particularly egregious content were temporarily suspended.

Following each interview, a Policy Violation Investigation Report ("PVIR") was prepared summarizing the information obtained during the investigation as it related to each employee. The PVIRs contained factors that were considered in determining the appropriate disciplinary action to be taken with respect to each individual employee. Those factors included: (1) whether the employee's policy violations could have resulted in harm or embarrassment to the Company, or subject the Company to legal action; (2) whether the violation was intentional; (3) whether the employee involved others; (4) whether the employee was aware of Xerox's policies and whether he or she had completed Xerox's annual Code of Conduct training; (5) whether the employee was truthful during the investigation; (6) the employee's position in the Company; and (7) whether the employee had an opportunity to explain the circumstances.

Final decisions regarding terminations, suspensions, and final warnings were based on the seriousness of the violations as demonstrated by the above-mentioned factors, as well as by additional criteria, such has how recently the employee was involved in sending/receiving pornographic material through e-mail, whether the employee sent the material or merely received it, whether the employee stored the material in a dedicated e-mail folder, whether the material was sent to outside Xerox vendors, the number of e-mails stored and/or sent, the number of people to whom the employee sent the material, and the graphic content of the offensive material.

One-hundred-forty-three (143) e-mail accounts were ultimately investigated and 88 employees were interviewed based on the presence of pornography on their computers. Thirty-two employees who were interviewed had no disciplinary action taken against them on the basis that they had received pornographic e-mails, but did not store them or transmit them to anyone else. Another group of thirty-two employees were given "final warnings" and were subjected to sanctions. Among that group were two female employees and twenty-two male employees over the age of 40. These individuals typically stored or sent three or fewer e-mails and/or the e-mails were sent only to their home computers, and not to Xerox employees or vendors.

The remaining twenty-four individuals who had been investigated were terminated*fn1 from employment, seventeen of whom became plaintiffs in the present action. Of this group, three men were under age 40, including Plaintiff Dearick Smith. The employees in the terminated group were found to have stored or sent over three graphic e-mails to multiple Xerox employees or Xerox vendors.

III. Procedural History

Subsequent to their termination from employment, Plaintiffs filed Charges of Discrimination against Xerox with the Buffalo District Office of the Equal Employment Opportunity Commission ("EEOC") in September, 2006, charging Xerox with unlawful age and sex discrimination. The EEOC made no determination but by notice dated March 30, 2007, Plaintiffs were notified by the EEOC of their right to sue.

This action was then commenced on June 27, 2007 (Dkt. #1), and Plaintiffs filed an amended complaint (Dkt. #2) the following day, alleging that Xerox's decision to terminate the Plaintiffs was based on age and gender discrimination in violation of, inter alia, the ADEA and Title VII of the Civil Rights Act of 1964.

There are currently fifteen active Plaintiffs in this action: Thomas Glenwright, Jerry Owens, Walter Lerminiaux, Jr., Michael Voight, Brian Desain, David Yaworski, Robert Turchetti, Robert Conger, Willie Ray Lonon, Dearick Smith, Michael Holdbrook, Joseph Daher, Gerald Cox, John Darcy, and Joseph Acquista. Plaintiff David Santo is now deceased and Louis Kurtic, Jr. was ...

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