Well the happy ass Sprint cowards have no commited my account to collections as promised, gotta love the weakness of a Powerful corporation when they know they got caught for a change.
Although all the details will be left to the gracious internazisuite, the agenda has not changed. A slight delay for the summer months will not do alot of damage.
Gave to your local community banks, support those that cannot support themselves. Do not socialize with people that repeatedly type "I" "me". Maintain a positive attitude that can reflect ideals unsupported your people who claim to be your "friends"
That is a public service announcement by internazisuite who hopes you are enjoying your life.
Sunday, May 6, 2012
Sunday, April 29, 2012
Sundays are a good day to inflict pain...
- FROM:
- TO:
Sunday, April 29, 2012 9:45 AM
Good Morning Demetre.
Thank you for the continued attempts to resolve the ongoing issues. This reply is intended as an update of information for your records for the simple fact the you have maintained communications where other departments have either not responded or have no other agenda other than to issue refusals and attempt to collect.
Two weeks ago I recieved the records from my bank showing that on Feb, 10/2012 Sprint attempted to access my account 17 times starting at 7:32 AM CST. Of those attempts 3 were successful in which the since refunded amounts were indeed taken. As maintained by Menafield, a Sprint CSR with a larger title meant to mean something it does not, the transactions were NOT initiated with my device, I did NOT call customer service to initiate 17 transactions. The varying amounts and declined transaction record shows Sprint attempting to extract amounts that reflect a direct attempt to steal funds.
Lisa Powells investigation and subsequent follow up is/was nothing more than a continued insult directed at an attempt to cover up Sprint stealing funds from a customer. There is NO way of a mistake. I do not need previously requested data at this time and would be concerned with how Sprint would like to resolve the ETF fees since in fact Sprint cancelled service to my device and the outstanding service charges. Since the inception of these incidents your participation has been the only respectful communications that can be trusted, I will continue to attempt to maintain contact with your desk in hopes we can come to a resolution all will be comfortable with. I am not interested or going to allocate funds towards ANY Sprint accounts, I will be seeking a form of compensation in regards to the continued disrespect and complete lack of trust and total betrayal of confidence displayed by Sprint.
Thank you for your time, Please feel free to contact me via email as soon as the executive dept confers with the legal dept and wishes to move forward. Hopefully we can avoid having to retain legal assistance.
John
To: John Mc Bride <milling_drum@yahoo.com>
Sent: Wednesday, March 28, 2012 7:56 PM
Subject: Re: Dan@Sprint.com (KMM97569785V78801L0KM)
Dear John McBride,
Thank you for your response to Dan@Sprint.com. I am sorry your services
have been interrupted. In order to retrieve the call details requested
for verification of the unauthorized payments legal documentation is
needed. Ms. Powell did thoroughly investigate your concerns and did
verify the payments were submitted from your equipment directly. Per
your conversation with Ms. Powell, a block was setup on your account to
prevent payments through *2 or *3 to ensure your account is secure.
To restore service we would need to conference a call with our Finance
department to schedule payment arrangements. If you are not satisfied
with the resolution, I can have your concerns escalated to our Senior
Management Team for further discussion. I can be reached at
757-223-3363. I am in the office Monday - Thursday 11:00 a.m. - 8:00
p.m. and Friday 11:00 a.m. - 3:00 p.m. EST.
Thank you again for contacting Sprint. We appreciate your business.
Sincerely,
Demetre B.
Sprint
Get the best value for your money & exercise your freedom
to change plans anytime without penalties - we promise!
www.sprint.com/planpromise
Sprint.com is all about you! My Sprint puts what you want to know,
right at your fingertips -- take a tour and sign up today!
www.sprint.com/mysprint
Original Message Follows:
------------------------
Hello Demetre,
Your network has discontinued service to my device. Please use alternate
number as before if you need to reach me immediately. Email is the best
way to contact me.
Sent from my HTC on the Now Network from Sprint!
----- Reply message -----
From: "Dan@sprint.com" <Dan@sprint.com>
Date: Tue, Mar 27, 2012 4:02 pm
Subject: Dan@Sprint.com (KMM97530646V89256L0KM)
To: "John Mc Bride" <milling_drum@yahoo.com>
Dear John McBride,
Thank you for contacting us through Dan@Sprint.com. I attempted to
reach you today on line 716-704-0305 to assist you with your billing
concerns, but was unable to speak with you and left a voice message. I
can also be reached at 757-223-3363. I am in the office Monday -
Thursday 11:00 a.m. - 8:00 p.m. and Friday 11:00 a.m. - 3:00 p.m. EST. I
look forward to speaking with you soon.
Thank you again for contacting Sprint. We appreciate your business.
Sincerely,
Demetre B.
Sprint
Get the best value for your money & exercise your freedom
to change plans anytime without penalties - we promise!
www.sprint.com/planpromise
Sprint.com is all about you! My Sprint puts what you want to know,
right at your fingertips -- take a tour and sign up today!
www.sprint.com/mysprint
Previous Reply Follows:
-----------------------
Dear John McBride,
Thank you for contacting us through Dan@Sprint.com. I was calling you
today on line 716-704-0305 to assist you with your billing concerns, but
was unable to speak with you and left a voicemail message. I can also
be reached at 757-223-3363. I am in the office Monday - Thursday 11:00
a.m. - 8:00 p.m. and Friday 11:00 a.m. - 3:00 p.m. EST. I look forward
to speaking with you soon.
Thank you again for contacting Sprint. We appreciate your business.
Sincerely,
Demetre B.
Sprint
Get the best value for your money & exercise your freedom
to change plans anytime without penalties - we promise!
www.sprint.com/planpromise
Sprint.com is all about you! My Sprint puts what you want to know,
right at your fingertips -- take a tour and sign up today!
www.sprint.com/mysprint
Original Message Follows:
------------------------
Demetre,
Thank you for continuing efforts in regard to my account services with
Sprint. At present you are aware a number of difficult situations exist
that may or may not come to a successful resolution of which we could be
pleased with. My personal objectives remain as stated in this continued
exchange, complete trust must be restored as to billing, I need to feel
comfortable providing a method of payment via debit/credt that can be
used as I can supply funds.
We have a number of issues to traverse, some could be considered
extremely serious as far as the FCC is concerned. The unauthorized
account activity is mainly an area of focus. Follow up behavior with
Sprint rep Lisa Powell needs to be validated to a certain degree due to
the fact I have no record that any elements of what Mrs Powell claims to
have occurred DID occur. Hopefully the division of Sprint that maintains
and operates CPNI activities can rectify these concerns or it would
appear a multitude of wire fraud related actions have occurred, if we
follow the mentality of the fact that an account invasion took place by
Sprint, followed by utterances of unsubstantiated claims, in an attempt
to mislead or direct attentions elsewhere. I like to believe that is not
the case but it would appear by lack of response to direct inquiry would
indicate otherwise.
Let us please have options available for the immediate future. I will be
needing Lisa Powells employee number, Demetre B's employee number. The
separation of those individuals will become important as far as
references if in fact legal actions must be taken. FCC actions will not
amount to anything past negotiations which will become a matter of
record. All current activity will need dates and follow up to clarify
present status.
Presently , in addition to the above mentioned action having occurred,
my opinion is openly stated that I do not in any way believe details
which Sprint rep Lisa Powell related in phone conversations on or about
Feb 20/12. which maintain illegal account activity of which cannot be
validated or sustained either by phone records or recorded conversations
of which we have no record evident. Although the dates of transactions
differ on a factual basis, it remains an issue which has not been
addressed as of this time.
Portability has not been address or discussed, although we both wish for
continued relations it is a fact we may not be able to remedy details
pertaining to a number of concerns presently being negotiated. Demtre B
has supplied all requested information and continues to maintain
communications that indicate Sprint is aware of the positions and
actions I may need to pursue.
At Present I am looking for all relevant information related to CPNI
regulations in accordance with reporting requirements of the above
incidents.Once that information has been provided and verified by the
FCC we can negotiate further contracts and I am interested in the
purchase of addition devices of which services will be needed.
If in fact Sprint cannot demonstrate CPNI regulations were followed and
adhered to, it becomes suspect that I will be forced into retaining
counsel for the purposes of securing a resolution in the matters
mentioned above. Other account details I have unearthed in a systematic
review of billing has shown discrepancies on many fronts. Issues there
are being tablulated at this time and I cannot currently assess itemized
topics I may contend. What comes to mind initially are the numerous
failures to notify me of changes made to contractual obligations over
the years, most recently I see sprint abandoned a form of customer
status which at this time has no equivalent. I do not see in any of the
billing a record which clearly states how the termination of that
program is directed at me, nor do I see a final termination date.
At some point my spending limit was reduced, that occurred as well
without notification that I can find. Spending limit access has never
been available for direct use at any time with products I wish to have
possibly purchased or used. To this point the any spending limit
activity I have used would mainly be long distance charges of which
being a premium customer might have covered and given some type of
reduction I have not seen.
All these issues are most certainly going to be covered at some point in
the not to distant future. My direct attention will be diverted as the
paving season begins but I can maintain responses via email.
Please feel free to contact me with the details requested at any time. I
am requiring all CPNI related documentation sent via email as soon as
possible. If at all possible, I would ask accounting to supply billing
as far back as 2009 just prior to the purchase of the Palm Treo
purchased in the summer 2009 when at that time I was without services
for lengthy periods of time coupled with extremely poor response and
customer service. Those account records will show good intent of
continuance despite the failure of Sprint as a provider to notify or
contact me in respect to services offered in respect to Nextel.
I remain committed to a fair resolution which we can both have an
agreement that can be satisfactory on all fronts.
John
From: "Dan@sprint.com" <Dan@sprint.com>
To: John Mc Bride <milling_drum@yahoo.com>
Sent: Friday, March 23, 2012 4:12 PM
Subject: Re: Dan@Sprint.com (KMM97419900V41362L0KM)
Dear John McBride,
Thank you for contacting Dan@Sprint.com and for speaking with me today.
Per our conversation, I will be partnering with Lisa regarding your
request for proof of the call details. A follow up callback will be
provided on 03/26/2012. I am in the office Monday - Friday 11:00 a.m.
- 8:00 p.m. and Saturday 11:00 a.m. - 3:00 p.m. EST. I look forward to
speaking with you soon and resolving your concerns.
Thank you again for contacting Sprint. We appreciate your business.
Sincerely,
Demetre B.
Sprint
Get the best value for your money & exercise your freedom
to change plans anytime without penalties - we promise!
www.sprint.com/planpromise
Sprint.com is all about you! My Sprint puts what you want to know,
right at your fingertips -- take a tour and sign up today!
www.sprint.com/mysprint
Previous Reply Follows:
-----------------------
Dear John McBride,
Thank you for your response to Dan@Sprint.com. I made an attempt to
contact you today on line 716-704-0305, but no one was available at that
time. I am trying to reach you regarding an e-mail received in
reference to your billing concerns. Please feel free to contact me for
further assistance at 757-223-3363. I am in the office Monday - Friday
11:00 a.m. - 8:00 p.m. and Saturday 11:00 a.m. - 3:00 p.m. EST. I look
forward to speaking with you soon and resolving your concerns.
Thank you again for contacting Sprint. We appreciate your business.
Sincerely,
Demetre B.
Sprint
Get the best value for your money & exercise your freedom
to change plans anytime without penalties - we promise!
www.sprint.com/planpromise
Sprint.com is all about you! My Sprint puts what you want to know,
right at your fingertips -- take a tour and sign up today!
www.sprint.com/mysprint
Original Message Follows:
------------------------
For the sake of review we do know that an unauthorized amount of money
was withdrawn from my US Bank debit card. In overlooking that scenario,
and trying to assume that some form of legitimization may be present to
suggest outside interference existed at some point of concern regarding
loss of funds a number of concerns remain suspect to unethical behavoir.
Please consider the attachment as a form of rule, I do not have any
interest in this document except the actual duties of my wireless
carrier in the event of a possible breach of credit card information
which was contained on the server being used to pay monthly or bi
monthly as funds allow. As of this evening I have not found the articles
of regulation related to this outline, I am using it as a guide for the
purpose of relating the position I will maintain throughout our
negotiations which will suggest that Sprint has not been following laws
drafted by the government for the purpose of profit which at times
becomes unreasonable as a whole through exploiting contract terms while
at the same time failing to provide adequate services.
You may or may not be familar with the document attached, If you are It
is something we need to discuss.
Thanks.
From: "Dan@sprint.com" <Dan@sprint.com>
To: John Mc Bride <milling_drum@yahoo.com>
Sent: Tuesday, March 20, 2012 4:27 PM
Subject: Dan@Sprint.com (KMM97300099V85992L0KM)
Dear John McBride,
Thank you for your response to Dan@Sprint.com. I sincerely apologize
for any inconvenience. In order to have the services restored or
discuss your billing concerns we would need to conference a call with
our Finance department. I understand you would like all conversations
documented via e-mail and I am more than willing to honor that request
to recap our voice conversations.
Please provide an alternate contact number for further assistance. I
can be reached at 757-223-3363. I am in the office Monday - Friday
11:00 a.m. - 8:00 p.m. and Saturday 11:00 a.m. - 3:00 p.m. EST. I look
forward to speaking with you soon and resolving your concerns.
Thank you again for contacting Sprint. We appreciate your business.
Sincerely,
Demetre B.
Sprint
Get the best value for your money & exercise your freedom
to change plans anytime without penalties - we promise!
www.sprint.com/planpromise
Sprint.com is all about you! My Sprint puts what you want to know,
right at your fingertips -- take a tour and sign up today!
www.sprint.com/mysprint
Previous Reply Follows:
-----------------------
Demetre,
Thank you for the swift reply. I appreciate the effort you have inserted
towards favorable results.
As you and some managers are aware, I have begun systematic reviews of
the billing which is available online. Due to this past incident with US
bank combined with aspects of relations we have both carried on with
over the time my account has been active with Sprint have come to an
end. Issues I currently have are numerous, and may become an element of
discussions we may need to have on the record.
Current amounts owed to sprint shows a substantially modified total. In
that respect I can appreciate the area of concern, a level of respect
which demonstrates furthering business. Something this customer hasn't
seen much of.
Without going into detail at this time it is important for any type of
communication to inform Sprint all future exchanges with John McBrides
must be either email or written verbatim. Phone conversations are
subject to manipulation which can no longer be an aspect of current
events. If your office decides to allow us room to resolve current and
past defects contained by contractual obligations it needs to be a
matter of hard copy negotiations. This is effective immediatly or please
go ahead with collections as required.
My first concern will be teleportation of the account. If we come to any
type of impass which demonstrates remorse over incidents Sprint will not
admit too have commited in recent weeks then I remain convinced we may
have a swift resolution.
Thank you for your time.
Saturday, April 14, 2012
Wednesday, April 11, 2012
Can you imagine that they still cannot get it right.
1968953
1968953
Mr. McBride
Your inquiry was forwarded to the Sprint Executive & Regulatory Services Department, and I have been asked to address your request. Please accept my apology for any inconvenience you may have experienced.
I look forward to the opportunity to assist you. Please contact me toll-free at 1-866-727-0665 or 201-964-8804, Monday through Friday, between 10: a.m. and 7 p.m., Eastern Time. Please reference case 1968953 at the time of your call.
I look forward to the opportunity to assist you. Please contact me toll-free at 1-866-727-0665 or 201-964-8804, Monday through Friday, between 10: a.m. and 7 p.m., Eastern Time. Please reference case 1968953 at the time of your call.
Vanessa. Menafield
Executive Services Analyst
Executive & Regulatory Services
Executive Services Analyst
Executive & Regulatory Services
Phone: (201) 964-8804
Fax: 1-888-765-1071
This day the iconic Sprint offer more useless banter and time wasting, I send an email which details the usual results of the phone call to Menafield. Not a full second after the send command an email appears from Sprint outlining the account being sent to collections.
I call the 800 number shown in the email to confirm they will also throw the ETF fees in and why it isn't included in the payment total owing. This poor kid tells me he has NO idea what CPNI is related to, I inform him of current events which are way over his head and he still politely inquires as to when I plan to restore account services...
Almost choking with laughter I lay out the numerous reasons of whats going on and ask him to consider the fact his position at sprint as being something he may not be proud of, he almost chuckled and we left it as that. Gotta love these young uns these days when they do finally get some info they didnt know of about the people they work for and trust. Imagine you found out your employer is a thef and liar? what would you do?
I call the 800 number shown in the email to confirm they will also throw the ETF fees in and why it isn't included in the payment total owing. This poor kid tells me he has NO idea what CPNI is related to, I inform him of current events which are way over his head and he still politely inquires as to when I plan to restore account services...
Almost choking with laughter I lay out the numerous reasons of whats going on and ask him to consider the fact his position at sprint as being something he may not be proud of, he almost chuckled and we left it as that. Gotta love these young uns these days when they do finally get some info they didnt know of about the people they work for and trust. Imagine you found out your employer is a thef and liar? what would you do?
Typical Sprint
SWACKHAMMER v. SPRINT UNITED MANAGEMENT CO
Dena SWACKHAMMER, Plaintiff-Appellant, v. SPRINT/UNITED MANAGEMENT CO., Defendant-Appellee.
No. 05-3222.
-- July 09, 2007
Before LUCERO, Circuit Judge, McWILLIAMS and EBEL, Senior Circuit Judges.
Frank B.W. McCollum, McCollum & Parks LC, Kansas City, MO, for Plaintiff-Appellant.Elaine Drodge Koch, Jeremiah J. Morgan, and Heather S. Esau Zerger, Bryan Cave LLP, Kansas City, MO, for Defendant-Appellee.
This appeal arises from a Title VII suit brought by Dena Swackhammer against her former employer, Sprint/United Management Co. (“Sprint”), in which she alleged that the decision to terminate her employment was motivated by gender discrimination. The district court granted summary judgment in favor of Sprint, holding that Swackhammer failed to satisfy her burden under the third step of the McDonnell Douglas1 evidentiary framework to raise an inference that Sprint's explanation for her termination was a pretext to mask intentional discrimination. We agree. Sprint consistently offered a single explanation for Swackhammer's termination-that she violated the company's ethical policies-and Swackhammer failed to provide either direct evidence that this explanation was false, or evidence of differential treatment sufficient to permit an inference that the true explanation for her termination was intentional discrimination. While Swackhammer provided evidence that she was treated differently than another Sprint employee, the record does not support any reasonable inference of a discriminatory motive arising from this treatment. We therefore agree that Swackhammer failed to establish pretext and AFFIRM the district court's grant of summary judgment for Sprint.
BACKGROUND
I. Factual Background2
Swackhammer was employed by Sprint as a Vice President from December 1997 until her termination in October 2002. Her supervisor from May 2001 until her termination was Antonio Castanon, at that time Sprint's Senior Vice President of Customer Solutions. As her supervisor, Castanon was responsible for the decision to terminate Swackhammer. Castanon also supervised four other Vice Presidents, including Mark Alan Winters. Swackhammer, in turn, supervised several employees, including Paul Garcia, Senior Director of Database Marketing and Customer Relationship Management.
A. Events Leading to Swackhammer's Termination
Swackhammer's termination was not related to her job performance; the parties agree that she was highly successful during her time at Sprint, receiving positive performance reviews and qualifying for an executive talent pool. However, during the summer of 2002, Sprint received anonymous complaints of unethical behavior within Sprint's Customer Service Group, alleging in particular that Garcia had inappropriately taken advantage of relationships with vendors. As a result of these complaints, Sprint Corporate Security initiated an investigation and interviewed both Swackhammer and Garcia. During Swackhammer's interview, Corporate Security asked her about various business trips and email correspondences with Garcia and confirmed that she was aware of Sprint's policies regarding travel and gifts paid for by vendors. Although Swackhammer later signed a statement prepared by Corporate Security summarizing the contents of her interview, she claims that the statement was incomplete and tended to emphasize information that negatively reflected on her and that, had she known at the time that she, along with Garcia, was the subject of the investigation, she would have been more careful in ensuring that the statement accurately reflected her recollection of the interview. Garcia was asked similar questions in his interview, and also signed a statement summarizing his responses.
Upon completing its investigation, Corporate Security met with Castanon and Jim Kissinger, then Vice President of Human Resources, to review the results. Castanon claimed responsibility for the decision to terminate both Swackhammer's and Garcia's employment during this meeting, based on the evidence presented there. This evidence included Swackhammer's and Garcia's signed interview statements, excerpts from Sprint's policy manual concerning vendor relationships, photographs of Swackhammer and Garcia aboard a Concorde jet during a business trip, and copies of several emails sent by Swackhammer and/or Garcia. The emails contained references to expensive gifts from vendors,3 indications that Garcia intended to bring a friend on a business trip for which Sprint would pay the expenses,4 and an exchange that Castanon interpreted to mean that Garcia intended to share confidential bid information with a third-party vendor.5
Although Swackhammer argues that the emails were misinterpreted by Castanon and Kissinger and that she did not violate any Sprint policy, Castanon testified that he was convinced that Swackhammer had both violated Sprint's ethical policies and failed to enforce those policies with regard to Garcia. Castanon also testified that, even if the events described in the emails never actually transpired, the “appearance of impropriety” they created was sufficient in his view to justify termination. Kissinger concurred with Castanon's assessment; the record includes notes of “Talking Points” that Kissinger prepared after the meeting, listing concerns that allegedly led to the decision to terminate Swackhammer including: (1) not properly reporting or receiving advance approval for vendor-paid entertainment; (2) participating in or allowing an unreasonable level of vendor-paid or Sprint-paid entertainment; (3) soliciting or encouraging vendor entertainment; and (4) creating potential or apparent conflicts of interest and inappropriate relationships with third parties. Kissinger's notes conclude that, from the evidence presented, there appeared to be “clear violations” of the spirit and intent of Sprint's written policy manual.
On October 14th, 2002, Castanon and Kissinger met with Swackhammer and informed her that her employment was being terminated based on the results of Corporate Security's investigation. Castanon and Kissinger terminated Garcia on the same day.6
B. Castanon's Relationship with Winters
While the investigation of Swackhammer and Garcia was ongoing, Sprint Corporate Security began investigating another anonymous complaint, this time involving Castanon and a male Vice-President under his direct supervision, Alan Winters. Winters and Castanon were close personal friends, having been fraternity brothers during college and working together before becoming employed at Sprint. Corporate Security's investigation of Castanon and Winters focused on allegations similar to those brought against Swackhammer and Garcia: that they accepted inappropriate vendor-paid travel and gifts, and that Castanon failed to supervise adequately Winters' compliance with Sprint's vendor policies. Because Castanon and Winters were able to provide sufficient authorization for their travels, Corporate Security apparently was unable to substantiate the allegations against them. Winters, however, admitted during an interview with Corporate Security that he had failed to review expense reports after certain business trips and, as a result, had improperly expensed several items to Sprint including a hotel movie, gift shop charges, airport parking, a meal expense, and a rental car fee from a personal trip.
Corporate Security informed Castanon and Kissinger of Winters' expense report violations at the same meeting where evidence from the investigation of Swackhammer and Garcia was presented. Castanon, however, elected not to terminate Winters; instead, he met with Winters to review the processes for properly recording expenses, and later followed up by checking Winters' expense reports to ensure that they were correctly processed. Castanon testified that, although he and Winters were close personal friends, their personal relationship did not affect his treatment of Winters in the work context. He attributed his decision to provide coaching and counseling to Winters, rather than terminating him, to the lack of evidence of any clear violation of Sprint's ethical policies, an assessment Kissinger agreed with. However, when Castanon was terminated in August 2003 during a work-force reduction, Kissinger cited Castanon's failure to deal with a personal conflict of interest with Winters as one reason for his termination.
II. Procedural History
Swackhammer brought suit against Sprint in the United States District Court for the District of Kansas, alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Kansas Act Against Discrimination (“KAAD”), Kan. Stat. Ann. § 44-1001 et seq.7 She did not offer direct evidence of discrimination, but instead invoked the burden-shifting framework from McDonnell Douglas and attempted to establish an inference of discrimination from circumstantial evidence. In support of this attempt, Swackhammer argued that Corporate Security's investigation produced insufficient evidence to support a good-faith decision by Castanon to terminate her and that Castanon's decision to terminate her while not terminating Winters constituted differential treatment that was evidence of intentional discrimination.
Sprint moved for summary judgment in its favor, which the district court granted. The court applied the McDonnell Douglas framework, first holding that Swackhammer satisfied her “light burden” to prove a prima facie case of gender discrimination by showing that she: (1) belongs to a protected class; (2) was qualified for her position; (3) was discharged despite her qualifications; and (4) was terminated “under circumstances which give rise to an inference of unlawful discrimination.” Swackhammer, 2005 WL 1319058 at *18 (quoting Plotke v. White, 405 F.3d 1092, 1100 (10th Cir.2005)).8 The court then held that Sprint's explanation for Swackhammer's termination, namely Castanon and Kissinger's belief that she violated Sprint policies, failed to adequately supervise Garcia, and created an “appearance of impropriety” regarding relationships with vendors, was sufficient to satisfy the “exceedingly light” burden on the employer to provide a legitimate, nondiscriminatory explanation under McDonnell Douglas's second step. Swackhammer, 2005 WL 1319058 at *19.
The burden thus shifted back to Swackhammer under McDonnell Douglas's third and final step to establish that Sprint's proffered explanation was a pretext to conceal intentional discrimination. Id. The court held that her evidence did not raise a genuine issue of material fact as to pretext, concluding that she failed to show that Sprint's proffered explanation was unworthy of belief and that the discrepancy in treatment was explained by an alternative, nondiscriminatory reason, i.e. Castanon's close friendship with Winters. Id. at 20-23. Thus, having found no evidence to create a genuine issue of material fact as to pretext, the court granted summary judgment for Sprint. Id. at 23. Swackhammer timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
III. Analysis
On appeal, Swackhammer contests the district court's determination that she failed to raise an issue of material fact as to whether Sprint's proffered reasons for her termination were a pretext for intentional discrimination. “We review the district court's grant of summary judgment de novo and must apply the same legal standard used by the district court.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir.2005) (citation omitted). Fed.R.Civ.P. 56(c) provides that summary judgment is appropriate “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.” Under this standard, “we must view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Bryant, 432 F.3d at 1124.
A. The Function of Pretext under McDonnell Douglas
The question of pretext arises only in the third and final step of the McDonnell Douglas inquiry, after the plaintiff has successfully established a prima facie case of discrimination and the employer has successfully articulated a legitimate, nondiscriminatory reason for the termination. Young v. Dillon Cos., Inc., 468 F.3d 1243, 1249 (10th Cir.2006). At this point, the presumption of discrimination created by the plaintiff's prima facie case “simply drops out of the picture,” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and “[t]he plaintiff then carries the full burden of persuasion to show that the defendant discriminated on the illegal basis of ․ gender.” Bryant, 432 F.3d at 1125.
Since a plaintiff utilizing the McDonnell Douglas framework normally cannot provide direct evidence of discrimination, a pretext argument provides a method of satisfying this burden by allowing the factfinder “to infer the ultimate fact of discrimination from the falsity of the employer's explanation.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A plaintiff shows pretext by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence” and hence infer that the employer did not act for the asserted nondiscriminatory reasons. Plotke, 405 F.3d at 1102 (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997)).
One typical method for a plaintiff to prove pretext is by providing direct “evidence that the defendant's stated reason for the adverse employment action was false.” Kendrick, 220 F.3d at 1230. Another common method is a differential treatment argument, in which the plaintiff demonstrates that the employer “treated [the plaintiff] differently from other similarly-situated employees who violated work rules of comparable seriousness” in order to show that the employer failed to follow typical company practice in its treatment of the plaintiff. Id. Evidence of pretext may also take a variety of other forms. “[A plaintiff] may not be forced to pursue any particular means of demonstrating that [a defendant's] stated reasons are pretextual.” Id. (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 187-88, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)).
However the plaintiff may choose to demonstrate pretext, we have definitively rejected a “pretext plus” standard; in order to survive summary judgment, a plaintiff generally need not provide affirmative evidence of discrimination beyond the prima facie case and evidence that the employer's proffered explanation is pretextual. Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1312 (10th Cir.2005); see also Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1135-36 (10th Cir.2003) (“The plaintiff need not show both that the defendant's reasons were a pretext and that the real reason was discrimination-the fact of pretext alone may allow the inference of discrimination.”). We do not always require actual evidence of discrimination because, “[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose․ Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.” Reeves, 530 U.S. at 147, 120 S.Ct. 2097.9
However, it is not always permissible for the factfinder to infer discrimination from evidence that the employer's explanation is unworthy of belief. “[I]f the record conclusively revealed some other, nondiscriminatory reason for the employer's [adverse employment] decision, or if 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 had occurred,” the fact that the employer's explanation was unworthy of belief would no longer be sufficient to create an inference of discrimination. Id. at 148, 120 S.Ct. 2097. The same reasoning applies to a plaintiff's attempts to show pretext through evidence of differential treatment; if the employer's differential treatment of similarly-situated employees is “trivial or accidental or explained by a nondiscriminatory motive,” such treatment is insufficient to create an inference of discrimination. Kendrick, 220 F.3d at 1232.
This exception to the general rule against “pretext plus” makes sense because the falsity of an employer's proffered explanation, or the existence of differential treatment, defeats summary judgment only if it could reasonably lead the trier of fact to infer a discriminatory motive; where the evidence of pretext supports only nondiscriminatory motives, such an inference is logically precluded and summary judgment for the employer is appropriate. See Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1111 (10th Cir.2005) (“In drawing such inference [of unlawful discrimination], the factfinder must be able to conclude, based on a preponderance of the evidence, that discrimination was a determinative factor in the employer's actions-simply disbelieving the employer is insufficient.”).
In determining whether a plaintiff's evidence of pretext is sufficient to permit an inference of discrimination and thereby avoid summary judgment, the Supreme Court has noted relevant factors “includ[ing] the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered” on a motion for summary judgment. Reeves, 530 U.S. at 148-49, 120 S.Ct. 2097. In addition, this court has held that evidence foreclosing a rational factfinder from inferring a discriminatory motive may originate from either the plaintiff or the defendant. For example, we have held that when a plaintiff's evidence supports a nondiscriminatory motive for the employer's action and the plaintiff presents no evidence to undermine that motive, summary judgment for the employer is appropriate. Neal v. Roche, 349 F.3d 1246, 1252 (10th Cir.2003) (“[I]t is enough [to grant summary judgment for the employer] if the plaintiff concedes a hidden motivation which the court concludes is nondiscriminatory ․” (emphasis omitted)); Marx v. Schnuck Markets, Inc., 76 F.3d 324, 328 (10th Cir.1996) (“[I]f a civil rights plaintiff concedes that the real reason for the employer's action was a motive not prohibited under the civil rights laws, such a concession mandates granting of summary judgment to the employer.” (citation omitted)); see also Randle v. City of Aurora, 69 F.3d 441, 451 n. 14 (10th Cir.1995) (“[T]he plaintiff's concession of a lawful motive would take the issue of motive from the jury and preclude the inference of a discriminatory motive․”). We have also upheld summary judgment for the employer based on the employer's own alternative, nondiscriminatory explanations, so long as they remain unrebutted and the employer's credibility has not been so damaged as to render such explanations suspect. See Jaramillo, 427 F.3d at 1309-10 (“[A]s a general rule, an employee must proffer evidence that shows each of the employer's justifications are pretexual.”) (quoting Tyler v. Re/Max Mountain States, 232 F.3d 808, 814 (10th Cir.2000)).
Thus, with these considerations in mind, we proceed to consider Swackhammer's evidence that Sprint's explanation for her termination was pretextual.
B. Swackhammer's Evidence that Sprint's Decision was Pretextual
Throughout the proceedings below, Sprint consistently offered one explanation for Swackhammer's termination: that she was terminated for violating Sprint's ethical standards. In attempting to dismiss this explanation as unworthy of belief, Swackhammer presented two types of pretext evidence: evidence intended to directly demonstrate the falsity of Sprint's explanation, and evidence of Castanon's differential treatment of Swackhammer and Winters. We consider each in turn.
1. Evidence of the Falsity of Sprint's Explanation
Swackhammer first attempted to demonstrate that violation of ethical policies was not the true reason for her termination by arguing that Sprint should not have permitted Castanon to decide whether she was to be terminated because Castanon was under investigation for similar ethical violations at the time; that the evidence Corporate Security presented to Castanon and Kissinger was insufficient to support Swackhammer's termination; and that Castanon should have consulted with Swackhammer and considered her previous work record prior to making the decision to terminate her.
Swackhammer's arguments fail to raise a genuine issue of material fact as to the falsity of Sprint's proffered explanation. Evidence that the employer should not have made the termination decision-for example, that the employer was mistaken or used poor business judgment-is not sufficient to show that the employer's explanation is unworthy of credibility. Young, 468 F.3d at 1250; Simms v. Okla. ex rel. Dep't of Mental Health, 165 F.3d 1321, 1330 (10th Cir.1999). “The relevant inquiry is not whether the employer's proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.” Rivera, 365 F.3d at 924-25 (internal quotation marks and alterations omitted).
Although Swackhammer did not, at the summary judgment stage, have a burden to establish conclusively whether Castanon's stated reliance on the results of the investigation was pretextual, she was required to “establish that there is a genuine factual dispute with regard to the truth.” Bryant, 432 F.3d at 1126. Viewing Swackhammer's evidence in the light most favorable to her position, this evidence demonstrates that Sprint may have been unwise and that Castanon may have utilized questionable judgment, but it does not draw into question whether Sprint or Castanon actually relied, honestly and in good faith, upon the appearance of improprieties arising from the evidence gathered in Corporate Security's investigations. Swackhammer's arguments that Castanon “should have known that the misconduct she was accused of engaging in was completely out of character” and that Castanon “should have reconsidered whether it was appropriate to terminate [her] employment” are simply beside the point; it is not what Castanon should have known that matters, but whether he acted in good faith upon the beliefs he held. In addition, her contention that the evidence gathered by Corporate Security during its investigation was insufficient to support a good-faith belief that Swackhammer “actually engaged in misconduct” ignores Castanon's testimony that it was the appearance of impropriety arising from the evidence that mattered most to him.
Indeed, Swackhammer implicitly conceded in her deposition testimony that she could not directly prove Castanon's reasons for terminating her were false; instead, she fell back on her differential treatment argument: “the only thing I have is that Tony [Castanon] and Alan [Winters] were best friends, and that Alan was a man, and he was treated differently than I was, as was Tony” (emphasis added). Without more than this, the district court correctly held that Swackhammer failed to directly raise an issue of fact regarding the falsity of Sprint's explanation.10
2. Differential Treatment of Swackhammer and Winters
We turn next to Swackhammer's attempt to establish pretext by showing that Castanon treated her differently than he treated Winters under similar circumstances. The district court rejected this argument because it found that, assuming that the two were similarly situated,11 the disparity in treatment was caused by Castanon's close friendship with Winters and therefore did not allow for an inference of gender discrimination. Swackhammer, 2005 WL 1319058 at *22. We agree with the district court's result, if not the entirety of its reasoning: while Swackhammer's evidence may have established differential treatment, the record conclusively revealed two nondiscriminatory explanations for the discrepancy and left no room for an inference of discrimination, thus requiring summary judgment for Sprint.
Castanon testified that he treated Winters more leniently than Swackhammer because the former's misconduct was of a less serious nature than the latter's. During her deposition testimony, Swackhammer contested this explanation and stated her belief that Castanon treated Winters favorably because of their long friendship:
Swackhammer: Now, why would they do that [terminate Swackhammer but not Winters]? There was some ulterior motive. What was it? Well, it looks like Tony [Castanon] was covering for himself and for Alan [Winters]. I mean, they were also under investigation.
Tony had been interviewed by Corporate Security just a couple of days before I was terminated. I don't even know if they had made a decision on him yet. It was clear to me that I was being offered up as a sacrifice so that he and his buddy Alan would not have any adverse action taken against them․
Q: Did you think Paul Garcia was also being offered up as a sacrifice to protect Tony Castanon's job?
Swackhammer: I believe that they looked at my case and Paul's case as an opportunity to take action to save themselves․
And the only thing I have is that Tony and Alan were best friends, and that Alan was a man, and he was treated differently than I was, as was Tony.
Sprint, in its motion for summary judgment, seized upon this testimony and argued that Swackhammer had conceded that any differential treatment resulted from Castanon's close relationship with Winters, rather than providing evidence of underlying gender discrimination.12 Additional record evidence also supported this explanation; both Kissinger and Castanon testified that Castanon and Winters had long been close personal friends and that Castanon had been known to treat Winters differently than any of his other direct reports, male or female; for instance, Castanon hosted and paid for a birthday party for Winters, something he had not done for any other Sprint employee.
Swackhammer responded by denying that she conceded a nondiscriminatory explanation for her termination, arguing that her statement “the only thing I have is that Tony and Alan were best friends, and that Alan was a man, and he was treated differently than I was, as was Tony” supported her continuing belief that gender played a role in her termination. She also noted Castanon's testimony in which he denied that his friendship with Winters affected his decisionmaking and claimed to have held Winters to the same standards as any other Sprint employee.
From this evidence and argument, the district court concluded that “Castanon's different treatment of Winters clearly stems from their close friendship. Winters benefited from Castanon's favoritism toward him.” Swackhammer, 2005 WL 1319058 at *22. As a finding of fact upon a motion for summary judgment, this conclusion is erroneous. Viewing the evidence in the light most favorable to Swackhammer, see Bryant, 432 F.3d at 1124, there existed a genuine issue of fact as to whether the differential treatment was due to the difference in severity between Swackhammer's and Winters' ethical violations, or instead due to Castanon's friendship with Winters and his desire to protect his and Winters' job. Thus, the district court should not have taken it upon itself to determine which of these was the true explanation.
However, we conclude that this error was harmless because, whichever evidence the factfinder might have chosen to credit, neither version permits an inference of gender discrimination. If one credits Castanon's testimony, then his differential treatment of Swackhammer and Winters was nondiscriminatory, based on his conviction that Swackhammer's misconduct was more serious than Winters'. If, alternatively, the factfinder credited the evidence of Castanon's favoritism towards Winters, then the differential treatment, while perhaps unfair, was similarly nondiscriminatory. Neal, 349 F.3d at 1251 (“[A]n employer's actions based on loyalty to a friend ․ are not considered ‘discriminatory,’ even where they benefit the nonprotected friend ․ at the expense of a more qualified, protected person.”).13 In the latter scenario, Castanon's explanation for the differential treatment would have been proven unworthy of belief-but only because it concealed an equally nondiscriminatory explanation. The record contains no independent evidence, beyond Swackhammer's mere conjecture, that would allow a reasonable factfinder to disbelieve both explanations and thereby to infer that gender discrimination was the actual motivation for her termination. See Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988) (“[P]laintiffs' mere conjecture that their employer's explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.”). Thus a reasonable factfinder could not, based on the record in this case, infer a discriminatory motive from the difference in treatment between Swackhammer and Winters.
Before concluding, we address a final argument upon which Swackhammer places considerable emphasis on appeal. She argues that our precedent in Neal and Randle supports summary judgment based on a nondiscriminatory explanation for differential treatment only if the plaintiff has expressly conceded that explanation and advances no other possible explanation before the court. She contends that she never made such a concession, but at all times asserted her belief that gender played a role in her termination, and therefore that the district court's reliance on the nondiscriminatory explanation arising from her testimony was erroneous. We do not, however, read Neal-which relied upon and interpreted footnote 14 from Randle, 69 F.3d at 451-as requiring a plaintiff to concede that a nondiscriminatory motive was the only motivation for the employer's actions in order to justify summary judgment for the employer; indeed, the Neal plaintiff did not do so, making “several arguments concerning pretext” including attempts to show that her race played a role in her termination. Neal, 349 F.3d at 1248-49. Rather, we held in Neal that the plaintiff conceded a nondiscriminatory motive because she provided arguments in her summary judgment materials as a part of her “position before the court” that supported such a nondiscriminatory motive, and because her other evidence was insufficient to permit an inference of any discriminatory motive. Id. at 1251, 1252-53.
The facts in this case are similar. Swackhammer did not merely mention Castanon and Winters' relationship in her deposition testimony, but actually argued to the district court that Castanon and Winters were “long-standing personal friends” whose families vacationed together and that Castanon was terminated, in part, because he failed to “deal with a personal conflict of interest with [his] close personal friend, Alan Winters.” The only evidence she presented that tended to undermine this motive, aside from her own conjecture, was Castanon's original explanation that he had terminated Swackhammer for violating Sprint's ethical policies-evidence which, if believed, supports only another nondiscriminatory explanation.
In any case, contrary to Swackhammer's assertions, the district court did not rely solely on Neal's interpretation of Randle's footnote 14 for its grant of summary judgment, and we do not do so here. Neal and Randle's footnote 14 present one example of circumstances where the record undermined a plaintiff's claim of discrimination by supplying a convincing nondiscriminatory motive for the employer's actions which the plaintiff failed to overcome; this case simply presents another.
To paraphrase the Supreme Court, “although the plaintiff has established a prima facie case and set forth sufficient evidence” of differential treatment, “no rational factfinder could conclude that the action was discriminatory.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097. Thus, Swackhammer failed to carry her burden at the pretext phase of the McDonnell Douglas analysis to create an inference of discrimination, and the district court properly granted summary judgment for Sprint. See id. at 143, 120 S.Ct. 2097 (“[T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” (quotation omitted)).
IV. Conclusion
Viewed in the light most favorable to Swackhammer's claim of gender discrimination, the record in this case demonstrates that she was treated differently from Winters, another similarly-situated Sprint employee. However, the record also supports only two explanations for the difference in treatment between Swackhammer and Winters: either Swackhammer's misconduct was more egregious and therefore merited a harsher response, or her supervisor's close friendship with Winters led to Winters receiving favorable treatment. Neither of these explanations allows a reasonable factfinder to reach an inference of illegal gender discrimination. Thus, because Swackhammer presented no additional evidence which might allow such an inference of discrimination, she has failed to satisfy her burden to demonstrate pretext under the third step of the McDonnell Douglas framework. We therefore AFFIRM the district court's entry of summary judgment in favor of Sprint.
FOOTNOTES
1. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
2. We draw the basic facts from the district court's exceedingly thorough discussion in its Memorandum and Order. See Swackhammer v. Sprint/United Mgmt. Co., 2005 WL 1319058 (D.Kan. May 13, 2005).
3. The text of this email exchange between Garcia and Swackhammer reads:Garcia: I just received a bottle of Grand Marnier 150. If my door is closed today, be scared!Swackhammer: Who would do that to us? ? ? ? ?Garcia: Enkata [a third-party vendor], project kickoff!Swackhammer: What did you score for me? ? ?Garcia: Michael [Garcia's contact person at Enkata] wants to get us to SF and possibly a game at Pebble (he's never been and wants to go desperately.) Don't worry, the pimp is working.
4. One such email was sent from Garcia to a friend who did not work at Sprint, and reads:Garcia: Yeah, another tough week. Golf Friday and then off to Australia for a week of work. FYI, I did get invited to play golf in Aspen with Bill Clinton. Its [sic] a weekend of business cocktail parties, golf, and a speech by Bill. I may be able to bring a ‘date.’ Everything would be covered except air. Interested? We'd have to fly out Thursday July 18th and return that Sunday. America West and United fly to Aspen.Another was sent from Garcia to Swackhammer, forwarding an email from a female Sprint employee; apparently referencing the same business trip as the previous email, it reads:Garcia: Think she'd be my date in Aspen?
5. The text of this email, sent from Garcia to Swackhammer in response to a request to confirm the rates of one vendor whose rates Garcia had negotiated:Garcia: Dena, I'm actually going to discuss this with Jonathan [Garcia's contact person at the vendor] first on how to position it so he doesn't get screwed on other work if that's OK. But I DO WANT to show that we are good negotiators and do pay LESS!
6. Garcia filed a separate lawsuit against Sprint, alleging that his termination was motivated by race and national origin discrimination.
7. The district court noted that Title VII's standards apply to the KAAD, and thus that its holding under Title VII would also apply to Swackhammer's KAAD claims. See Best v. State Farm Mut. Auto. Ins. Co., 953 F.2d 1477, 1480 n. 2 (10th Cir.1991).
8. The more standard formulation of the McDonnell Douglas prima facie test for wrongful termination states as its fourth prong that “the job was not eliminated after [plaintiff's] discharge.” Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir.2005); Rivera v. City and County of Denver, 365 F.3d 912, 920 (10th Cir.2004); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir.2000). However, in Plotke, we held that “the fourth element of a prima facie case is a flexible one that can be satisfied differently in varying scenarios․ Indeed, where an employer contends the actual reason for termination in a discriminatory firing case is not elimination of the employee's position, but, rather, unsatisfactory conduct, the status of the employee's former position after his or her termination is irrelevant.” 405 F.3d at 1100. “The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred ‘under circumstances which give rise to an inference of unlawful discrimination.’ ” Id. (quoting Kendrick, 220 F.3d at 1227 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981))).
9. Although Reeves spoke in terms of judgment as a matter of law under Fed.R.Civ.P. 50, “the standard for granting summary judgment ‘mirrors' the standard for judgment as a matter of law, such that ‘the inquiry under each is the same.’ ” Reeves, 530 U.S. at 150, 120 S.Ct. 2097.
10. At oral argument, Swackhammer focused on an additional piece of testimony she claims undercuts Sprint's explanation: a portion of Kissinger's deposition testimony which Swackhammer summarizes as stating that “Castanon favored males over females.” Contrary to her interpretation, however, we are unable to read the statement she cites as implying any gender bias on Castanon's part. Although Kissinger testified that there was a “perception” that Castanon treated his other reports differently from Winters, Kissinger stated that he believed this “perception” arose from Castanon's friendship with Winters and “had nothing to do with gender discrimination.” Thus, even read in the light most favorable to Swackhammer's position, Kissinger's testimony does not constitute evidence of pretext.
11. “Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline.” Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir.1997). In addition, to demonstrate pretext through differential treatment, it must be shown that the employees “violated work rules of comparable seriousness.” Kendrick, 220 F.3d at 1230. For purpose of resolving this appeal, we assume without deciding-as did the district court-that Swackhammer and Winters were similarly situated.
12. Sprint did not itself concede that Castanon was in fact motivated by a desire to save his and Winters' job, but continued to maintain that Castanon's decision was based solely on the results of Corporate Security's investigation and that Swackhammer's claims of preferential treatment for Winters were wrong.
13. We do not mean to suggest that a friendship between a supervisor and a coworker will always foreclose any inference of discrimination. Favoritism may indeed be a proxy for gender discrimination. For example, if a plaintiff presented evidence regarding the nature of the supervisor's friendships that indicates a strong preference for or exclusion of a particular gender, a court could conclude that she had sufficiently established pretext to survive summary judgment. However, the mere fact that a supervisor has one close friend of the same gender, without more, is not enough to support such a conclusion.
EBEL, Senior Circuit Judge.
Tuesday, April 10, 2012
Right to rip Sprint up.
FCC CPNI Rules
On April 2, 2007, the FCC released a Report and Order which adopts additional rules to protect customer proprietary network information (“CPNI”).
Under the new rules, communications carriers must notify law enforcement of any breaches of CPNI, and they must also file annual CPNI certifications
with the FCC. In addition, the FCC’s new CPNI regulations cover providers of interconnected Voice over Internet Protocol ("VoIP") services. The new
rules will take effect six months after publication in the Federal Register or when approved by the Office of Management and Budget, whichever is later.
The FCC also released aFurther Notice of Proposed Rulemaking to consider what further regulations might be necessary to protect CPNI.
The new regulations, following the recent release of several FCC decisions penalizing carriers for apparent CPNI rule violations
(
see http://www.tkcrowe.com/cpni_enforcement_actions.html), underscore the FCC’s heightened focus on the protection of CPNI. All carriers, including
facilities-based and resale carriers, wireless providers, MVNOs and prepaid calling card providers, should commence preparations for complying with
the new rules.
Rules
CPNI is the individually identifiable information that is created by a customer’s relationship with a communications provider, such as data about the
frequency, duration and timing of calls, the information on a customer’s bill and call-identifying information. Because of the sensitive nature of this
information, CPNI is afforded greater protection under Section 222 of the Communications Act of 1934, as amended, than the other two general
categories of customer information – aggregate customer information and subscriber list information. In its Report and Order, the FCC stated that it is
now adopting additional protections for CPNI because “[t]he carriers’ record on protecting CPNI demonstrates that” some carriers “have failed to
adequately protect CPNI.”
The FCC CPNI rules are summarized below:
- Carrier Authentication. Since the release of call detail information over the telephone presents an immediate risk to privacy, carriers are prohibited
from releasing call detail information based on customer-initiated telephone contact, except under three circumstances: (1) when a customer provides a
pre-established password; (2) when a customer requests that the information be sent to the customer’s address of record; or (3) when a carrier calls the
telephone number of record and discloses the information. In addition, carriers must provide mandatory password protection for online account access.
Online access based solely on a customer’s readily available biographical information is prohibited. However, carriers are not required to reinitialize
existing passwords for online customer accounts. At retail locations, carriers may continue to provide account access to customers who present valid
photo IDs.
- Notice of Account Changes. Carriers must notify a customer immediately of account activity, such as a change to a password, an online account or an
address of record. Notification may be by voicemail, text message or by mail to the customer’s address of record.
- Notice of Unauthorized Disclosure of CPNI. If there has been a breach of CPNI, carriers must provide electronic notification of the breach within seven
business days to the United States Secret Service (“USSS”) and the Federal Bureau of Investigation (“FBI”). (The FCC will provide a link for the
reporting of breaches at
www.fcc.gov/eb/CPNI/.) In order to allow law enforcement time to conduct an investigation, carriers must wait another seven
business days before notifying the affected customers of the breach (unless the USSS and FBI request that the carrier continue to postpone disclosure).
However, carriers may notify customers sooner if there is a risk of immediate and irreparable harm. In addition, carriers must keep records of
discovered breaches for at least two years.
- Joint Venture and Independent Contractor Use of CPNI. Carriers must obtain opt-in consent from a customer before disclosing a customer’s CPNI to a
joint venture partner or an independent contractor for the marketing of communications-related services to the customer. Under the current opt-out
regime, the burden is on the customer; a carrier may share a customer’s CPNI with another entity after providing notice to the customer, so long as the
customer does not object. However, since current opt-out notices “are often vague and not comprehensible to an average consumer,” the FCC said it is
necessary to revise the rules to require express prior customer authorization.
- Annual CPNI Certification. Carriers must file an annual certification with the FCC, explaining any actions that they have taken against data brokers and
summarizing all consumer complaints that they have received during the year relating to the unauthorized release of CPNI. This requirement will be in
addition to the existing certification procedure, under which carriers must have an officer sign a compliance certificate each year attesting that the officer
has personal knowledge that the carrier’s procedures are sufficient to ensure compliance with the CPNI rules. Under the current rules, that certification
must be made available to the public, but does not have to be filed with the FCC. The new annual certification filing that must be made with the FCC will
be due by March 1 of every year, in EB Docket No. 06-36, and cover the previous calendar year. The first filing under the new rules will likely be due on
March 1, 2008.
- Interconnected VoIP Service. The CPNI rules will apply to providers of interconnected VoIP service. Interconnected VoIP is telephone service via a
broadband connection that utilizes Internet protocol and allows users to receive calls from, and terminate calls to, the public switched telephone
network. Owing to the growth in popularity of VoIP services, the FCC noted that if it did not extend the CPNI regulations to interconnected VoIP, “a
significant number of American consumers might suffer a loss of privacy and/or safety resulting from unauthorized disclosure of their CPNI.”
- Enforcement Proceedings. Carriers must take reasonable measures to discover and protect against unauthorized access to CPNI. If there is a
breach, the FCC will infer that the carrier’s protection methods were insufficient. As the FCC stated, “We fully expect carriers to take every reasonable
precaution to protect the confidentiality of proprietary or personal customer information.” The FCC will not require carriers to encrypt their customers’
CPNI, but it will expect them to do so if that would provide “significant additional protection against the unauthorized access to CPNI” at a reasonable
cost. We expect the FCC’s Enforcement Bureau to continue to aggressively penalize providers which fail to comply with the existing and new CPNI
rules.
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