United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION AND PROCEDURAL HISTORY
Darlene Murdoch (“Ms. Murdoch”) initiated this
employment case against her former employer Medjet
Assistance, LLC (“Medjet”) and its Chief
Executive Officer, Roy Berger (“Mr. Berger”) on
April 21, 2017. (Doc. 1). Ms. Murdoch generally maintains
that Mr. Berger sexually harassed her for a period of 6 to 7
months and that Medjet fired her in retaliation for reporting
his harassment to Medjet (in a letter from her lawyer) and
subsequently filing an EEOC charge about that same alleged
conduct. Ms. Murdoch's complaint contains both federal
and state law claims: (1) Title VII sexual harassment against
Medjet (Count One); (2) Title VII retaliation against Medjet
(Count Two); (3) negligent and/or wanton hiring, retention,
training, and supervision against Medjet (Count Three); (4)
invasion of privacy against both Mr. Berger and Medjet (Count
Four); (5) assault and battery against both Mr. Berger and
Medjet (Count Five); and (6) tort of outrage against both Mr.
Berger and Medjet (Count Six).
before the Court is Defendants' Motion for Summary
Judgment (doc. 19) (the “Motion”) filed on March
10, 2017. The Court has reviewed the parties' filings
offered in support of and opposition to the Motion. (Docs.
20, 21, 25-28). For the reasons set out below, the Motion is
GRANTED IN PART and otherwise
DENIED or TERMED as
SUMMARY JUDGMENT STANDARD
judgment is proper only when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed. R . Civ. P. 56(a). All reasonable
doubts about the facts and all justifiable inferences are
resolved in favor of the nonmovant. See Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A
dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Once the moving party has
properly supported its motion for summary judgment, the
burden shifts to the nonmoving party to ‘come forward
with specific facts showing that there is a genuine issue for
trial.'” International Stamp Art, Inc. v. U.S.
Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)).
STATEMENT OF FACTS
Background Facts About Medjet and Mr. Berger
operates a membership program that provides air medical
transport and related services for members who become ill or
injured while traveling. AF No. 1.1.The Birmingham-based company
employs approximately 24 people. AF No. 1.2. Mr. Berger is
Medjet's President and Chief Executive Officer. AF No.
1.3. As CEO of Medjet, Mr. Berger has ultimate hiring and
firing authority. AAF No. 1.1. Mr. Berger has a reputation
within Medjet of being a difficult boss. AAF No. 2.1.
Ms. Murdoch's Employment with Medjet
Murdoch was employed by Medjet as its Assistant Controller
from August 2014 until August 28, 2015. AF No. 1.4. When Ms.
Murdoch began her employment with Medjet, she reported to
Michelle Lowery (“Ms. Lowery”), who was employed
as the Controller. AF No. 2.1. As the Assistant Controller,
Ms. Murdoch was responsible for accounts payable, accounts
receivable, preparation of the daily sales report
(“DSR”), reconciliation of the DSR on a monthly
basis and other duties as needed to assist the Controller. AF
No. 2.2. The preparation and reconciliation of the DSR was
one of Ms. Murdoch's primary responsibilities. AF No.
Lowery separated from employment with Medjet in mid-December
of 2014, leaving Medjet without a Controller for
approximately a month. AF No. 3.1. During that month, Ms.
Murdoch took on additional responsibilities and reported
directly to and worked more closely with Mr. Berger. AF No.
3.2. Ms. Murdoch performed her duties satisfactorily during
that time period, and Mr. Berger decided to give her a pay
increase to begin 2015 based upon her willingness to step in
as needed after Ms. Lowery's unexpected departure. AF No.
January 12, 2015, Mona Roy (hereinafter “Ms.
Roy”) became employed as the Controller for Medjet. AF
No. 4.1. Ms. Roy had previously been employed by Medjet and,
on January 12, 2015 (doc. 21-1 at 4 at 12),  was brought back
to help restore order to the company's accounting
functions, which had suffered due to Ms. Lowery's
performance and departure. AF No. 4.2. When Ms. Roy was
rehired, it was expected that she would serve as the
Controller for a couple of years to supervise Ms. Murdoch and
eventually train Ms. Murdoch to take over her duties. AF No.
Medjet's Disciplinary Policy
Medjet's disciplinary policy, Ms. Roy testified:
The discipline policy is to document errors, to discuss them
with the employee, and when it is of sufficient nature,
document it with the employee and have them sign it. Usually
there are two people involved. And then termination if the
behavior continues or [problems with] performance continues.
(Doc. 21-1 at 8 at 25-26).
Kerr (“Ms. Kerr”), Mr. Berger's Executive
Assistant (doc. 26-5 at 3 at 8),  testified that she does not
believe that Medjet has “a written policy for
discipline.” (Doc. 26-5 at 9 at 31). Ms. Kerr indicated
that “it's usually two days off without pay if you
are caught doing something that was wrong or you have not
done something that you were supposed to do.”
Berger mentioned the use of suspensions in the context of
disciplining Ms. Roy. More specifically, Mr. Berger
disciplined Ms. Roy once recently and “[t]hrough the
years, [he disciplined her] . . . . [p]robably three or four
times.” (Doc. 21-2 at 21 at 77). In direct
response to the question from opposing counsel about whether
he recalled, “what the punishment was or would have
been?” Mr. Berger stated, “[i]t would have been a
couple of days suspension.” (Doc. 21-2 at 21 at 77).
counsel then asked Mr. Berger whether he meant “the one
time or other times?” Id. Mr. Berger then
modified his prior response with a more specific answer for
the most recent time and indicated he had no recollection of
what discipline he used for the other instances:
I'm talking about the one time was a couple of days
suspension recently. Yes. The other times I have no
Ms. Murdoch's Job Performance Issues and
Roy stated in her declaration, “[v]ery soon after [she]
began supervising [Ms.] Murdoch, [she] recognized that there
were deficiencies in [Ms. Murdoch's] performance.”
(Doc. 21-4 at 2 ¶ 4). More specifically, Ms. Murdoch
struggled with prepaid memberships and timely completing the
DSR, and she made numerous mistakes, including a major
payroll error and an overstatement of cash in a monthly
testified that she had “multiple discussions”
with Ms. Murdoch “[a]bout performance issues” and
that she “put a lot of notes in [Ms. Murdoch's]
file.” (Doc. 21-1 at 8 at 25). According to Ms. Roy, Ms.
Murdoch “didn't have the attention to detail that
[the Assistant Controller] position requires.”
(Id. at 11 at 37). Ms. Roy also indicated that Ms.
Murdoch lacked initiative. (See Id. (“There
also has to be initiative to look beyond just the
April of 2015, Ms. Roy realized that Ms. Murdoch “had
not applied a payment to a customer, thereby overstating the
cash by $15, 000 and potentially shorting people on a
bonus.” (Doc. 21-1 at 7 at 24); (see also Id.
at 20 at 73-74 (“The fact that she didn't realize
that, because she balanced the credit cards, that she could
have overstated cash by $15, 000.”); (id. at
74 (“It was a Daily Sales Report error that could have
impacted all of the employees within the
organization.”)); (Doc. 21-3 at 92 (“MEMO FOR
FILE - Darlene Murdoch” from Ms. Roy dated April 20,
2015, pertaining to Ms. Murdoch's failure to “post
a credit card payment to an outstanding
point during April 2015, Ms. Roy “told [Ms. Murdoch
that she] was concerned about her ability to perform the job
[of Assistant Controller]” and indicated that Ms.
Murdoch should look for another job. (Doc. 21-1 at 10-11 at
36-37; id. at 27 at 103); (Doc. 21-4 at 3 ¶ 5).
“Mr. Berger did not ask [Ms. Roy] to make that
communication to [Ms.] Murdoch].” Id.
25, 2015, Ms. Roy issued a written disciplinary warning to
Ms. Murdoch for failing to timely submit the DSR on June 23,
2015. AF No. 6.2. As the
“Details” section of the form
filled out by Ms. Roy explained:
On June 23, 2015, I discovered that the Sales Report for that
day had not been sent. I called [Ms. Murdoch] at 5:00 to let
her know that I had not received the DSR. I asked if she had
sent it and she said she wasn't sure if she did or not. I
asked her to verify that it was sent - it had not been. The
report was sent at 5:10 pm.
The DSR is a daily function with the same routine every day.
(Doc. 21-1 at 35).
written warning also stated (in boilerplate fashion) at the
top of the form:
You are receiving this First Written Warning as a result of
the issue(s) described below. Please be aware that this is
the first step in MEDJET Assistance's discipline process.
We trust that you will correct this matter by improving your
performance of your job and/or refraining from the act or
omissions that has led to this Warning Notice. Any subsequent
Written Warnings will lead to further discipline, up to and
(Doc. 21-1 at 35). Ms. Murdoch and Ms. Roy both signed this
disciplinary document. Id. During her supervision of
Ms. Murdoch, Ms. Roy only recalls that one time in June in
which Ms. Murdoch had to sign a written warning regarding her
poor performance. (Doc. 21-1 at 8 at 25). Further, the record
reflects that from the date of Ms. Murdoch's hire until
the date of her discharge, she received only one written
reprimand. AAF No. 7.1.
has stated that she “recommended to Mr. Berger that
[Ms.] Murdoch be terminated-once in April of 2015 and again
on June 25, 2015, when [she] issued [Ms.] Murdoch a written
warning for failing to send the daily sales report.”
(Doc. 21-4 at 3 ¶ 5). According to Ms. Roy, “Mr.
Berger declined those recommendations.” Id.
Murdoch responds to the foregoing job-related criticisms by
pointing out that she received a salary increase from $36,
000 to $40, 000 effective January 1, 2015. (Doc. 21-3 at 7 at
23-24); (see also Id. at 67
Form”)). Also, while Ms. Murdoch does not deny
that “she made errors during the performance of her job
duties” (doc. 25 at 3 ¶ 5), she contends that even
though Ms. Roy had been supervising Ms. Murdoch since
mid-January 2015, she only began being critical of Ms.
Murdoch's job performance in March or April of 2015. AAF
No. 6. According to Ms. Murdoch, Ms. Roy's heavy scrutiny
coincided with when Mr. Berger learned of her engagement in
March 2015. (Doc. 25 at 3 ¶ 5); (see also Doc.
21-3 at 47 at 182 (testifying that “the scrutiny of
[her] work was just incredible” and that “[Ms.
Roy] definitely started it in March”); id. at
183 (recalling that “the timing was [Ms. Roy] pressed
[her] for information regarding [her] personal life and who
was in [her] personal life, and from that time forward, the
atmosphere, everything changed at work”); id.
at 49 at 189-190 (“[A]fter [Mr. Berger] found out that
[Ms. Murdoch] was in a personal relationship, he became
non-communicative, would not talk to [her], rude, obnoxious.
[Her] work was scrutinized. The whole environment for [her]
work life changed.”)).
Berger testified that Ms. Roy told him about Ms.
Murdoch's engagement at the “end of March,
beginning of April.” (Doc. 21-2 at 11 at 38). He
further stated that the (disputed) “mutual, ”
“flirtatious banter” with Ms. Murdoch ended when
he “found out [that] she was engaged . . . because she
had every opportunity to tell [him], and she never
did.” (Doc. 21-2 at 20 at 75). Ms. Roy has stated that
“[a]t no time did Mr. Berger ever instruct, ask or
otherwise try to convince [her] to scrutinize [Ms.]
Murdoch's work or treat her differently from other
employees.” (Doc. 21-4 at 2 ¶ 4). Further, Ms.
Murdoch has no knowledge of “what [Mr. Berger] told
[Ms. Roy].” (Doc. 21-3 at 47 at 183).
August of 2015, after Medjet had changed credit card
servicers, a series of eleven customers should have received
credits on their credit card accounts for refunds from
Medjet, but the credits were not actually received by the
customers. AF No. 8.1. Ms. Murdoch was aware that there was a
problem because credits were posted with Medjet, but the
refunds were not actually issued by the credit servicer,
resulting in an overstated credit in her reconciliation
variance statement. AF No. 8.2. Although Ms. Murdoch was
monitoring the situation, she failed to alert Ms. Roy to the
issue. AF No. 8.3. One of the customers who was expecting a
refund made a series of complaints to Medjet and eventually
contacted a potential large corporate customer for Medjet and
informed the prospect that he was not satisfied with
Medjet's service. AF No. 8.5.
became aware of Ms. Murdoch's customer-credit mistake in
late August and addressed it with her during her performance
review on August 25, 2015. AF No. 9.1. Ms. Murdoch
acknowledged the mistake during her review and noted that she
should have informed Ms. Roy. AF No. 9.2. Ms. Roy considered
Ms. Murdoch's August review to be a very poor one. AF No.
Berger did not participate in Ms. Murdoch's performance
review, which occurred while he was out of town. AF No. 10.1.
Mr. Berger first became aware of the customer-credit error
and the resulting customer complaints on the day after the
review, August 26, 2015. AF No. 10.2. On August 27, 2015, Mr.
Berger “made the decision to terminate [Ms.
Murdoch's] employment . . . . [and] communicated the
termination decision to [her] on the following day, August
28, 2015.” (Doc. 21-5 at 2 ¶ 3).
Murdoch asserts that Mr. Berger's decision to fire her
was because of her lawyer's letter in June 2015 that
accused Mr. Berger of sexually harassing her and the EEOC
charge filed in August describing the same wrongful conduct.
In response, Mr. Berger has stated in his declaration:
My decision to terminate Ms. Murdoch was not motivated in any
way by the fact that Ms. Murdoch had filed a Charge of
Discrimination with the Equal Employment Opportunity
Commission. I had been aware since late June 2015 that Ms.
Murdoch had retained legal counsel and intended to assert a
claim of harassment with the EEOC. My decision to terminate
Ms. Murdoch was based solely upon her work performance and
was precipitated by a specific error in judgment, which she
had acknowledged, and which had the potential to cost the
company a substantial amount of business.
(Doc. 21-5 at 2 ¶ 3).
the August incident more specifically, Mr. Berger explained:
On August 26, 2015, . . . [Ms.] Roy, advised me about a
recent accounting error which resulted in eleven Medjet
customers not receiving credits on their credit card accounts
for refunds to which they were entitled from Medjet. Based
upon the information provided to me by Ms. Roy, it was
apparent that Ms. Murdoch had been aware that there was a
problem because credits were still outstanding on her
reconciliation variance sheet. Despite being aware of the
variances, Ms. Murdoch failed to notify Ms. Roy or take any
other action to remedy the problem. As a result, the problem
was not identified until eleven customers had been adversely
affected. Ms. Murdoch's failure to be proactive and
address the situation was consistent with prior performance
problems which had been reported to me by Ms. Roy.
(Doc. 21-5 at 2-3 ¶ 4).
Ms. Murdoch's Sexual Harassment Allegations Against Mr.
Murdoch contends that Mr. Berger took her to lunch and that,
during the lunches, he asked her personal questions about her
dating life and marriages. AF No. 12.1. Ms. Murdoch has
testified that she told Mr. Berger that she was
“uncomfortable” with the questions that he asked
her. (Doc. 21-3 at 29 at 111).
Murdoch and Mr. Berger went to lunch together on three
occasions. AF No. 12.2. The first occasion was in August of
2014, the second lunch occurred in October of 2014, and the
third and final lunch together was on February 18, 2015. AF
Murdoch maintains that, during the first lunch, Mr. Berger
told her that he had been in his second marriage for twenty
years and that it had been that long since he had sex. AF No.
12.4. During that first lunch and the two subsequent lunches,
Ms. Murdoch was not reserved and she told Mr. Berger about
her dating life, her three marriages, and her relationships
with her family members. AF No. 12.5. After the February 18,
2015 lunch, Ms. Murdoch sent Mr. Berger a text message
stating, “You may have taken me to lunch at [Ms.
Roy]'s request, but I'm going to pretend it's bc
you wanted to.” AF No. 12.6. At the end of the text,
Ms. Murdoch included a smiley face. AF No. 12.7.
Murdoch alleges that, during a particular conversation with
Mr. Berger, he told her she was very attractive and very
datable. AF No. 13.; ADF 2.3. According to Ms. Murdoch, Mr.
Berger one time entered her personal space to stare into her
eyes and told her she has beautiful eyes. AF No. 13.2; ADF
2.2. On other occasion he told her she looked good and that
he liked what she was wearing. AF No. 13.2. Ms. Murdoch
further asserts that Mr. Berger commented that she
“looked good” or that she was “hot.”
ADF No. 1.2. Ms. Murdoch believed it was inappropriate for
Mr. Berger to tell her he liked what she was wearing or that
she looked nice. AF No. 13.3. However, Ms. Murdoch never told
Mr. Berger she was offended by any compliment he gave her. AF
Ms. Murdoch never objected to Mr. Berger's complimenting
her on her appearance, she thought it was acceptable to send
Mr. Berger messages during the same time frame telling him he
was a “very kind and generous boss”; that he had
a nice tan; and that things in the office are “just
so-so” when he is not there. AF No. 14.1. During the
time when Ms. Murdoch claims to have been sexually harassed
by Mr. Berger, she regularly sent him unsolicited emails
asking him how he was doing or how his travels were going. AF
No. 14.2. For example, on February 11, 2015, Ms. Murdoch sent
an email to Mr. Berger while he was out of town stating:
“Just checking in. Is all as enjoyable there as you had
hoped?” AF No. 14.3. Ms. Murdoch ended the message with
a smiley face emoji. AF No. 14.4.
Murdoch complains about several other inappropriate email
communications that she received from Mr. Berger. In response
to an email from Ms. Murdoch thanking Mr. Berger for a
monthly bonus, Mr. Berger responded, “I actually like
you, you seem to be my exception, not my rule around
here.” AAF No. 2.2. Prior to March 2015, Mr. Berger
sent many email messages to Ms. Murdoch which Mr. Berger
characterized as “flirtatious banter”. AAF No.
2.3. Examples include “Look forward to seeing you
tomorrow.”; “I can handle you.”; and
“B safe going home and get some rest.” AAF No.
another occasion, Ms. Murdoch sent an email to Mr. Berger
thanking him for a donation made in honor of her recently
deceased mother. AAF No. 2.5. In response to the thank-you
email, Mr. Berger wrote, “you can tell me ‘in
person'”. AAF No. 2.6.
time, Ms. Murdoch sent an email advising that the computer
“G drive” was freezing up to which Mr. Berger
responded, “don't you just hate at your age when
the G drive freezes up? Greetings from Tampa. Miss me?”
AAF No. 2.7.
another occasion, Ms. Murdoch sent Mr. Berger an email
thanking him for another bonus. Ms. Murdoch additionally
wrote, “Well I hope my work eventually shows I'm
worth it” to which Mr. Berger responded “I want
you around…”. AAF No. 2.8.
Murdoch also claims that Mr. Berger looked at her up and down
with his eyes… and that “it was evident”
to her that he was noticing parts of her body. AF No. 15.1.
Mr. Berger never asked Ms. Murdoch on a date or asked her to
have sex, but she “got that feeling” from
something he said one time. AF No. 15.2. Ms. Murdoch cannot
remember what Mr. Berger said that gave her that feeling. AF
No. 15.3. Mr. Berger testified unequivocally that he never
advanced on Ms. Murdoch sexually. AF No. 15.4. Ms. Murdoch
never told Mr. Berger that she was bothered by any of his
comments or behavior. AF No. 15.5.
Murdoch claims that she was offended because Mr. Berger
sometimes referred to her as “Dear.” AF No. 16.1.
Ms. Murdoch thought it was inappropriate if Mr. Berger ever
used any term of endearment toward her and thought it was
sexually inappropriate that he called her “Dear.”
AF No. 16.2. Ms. Murdoch never told Mr. Berger she was
bothered that he called her “Dear.” AF No. 16.3.
March 10, 2015, when Ms. Murdoch was preparing for neck
surgery, Mr. Berger texted her to say, “Good luck
tomorrow. All will be just fine.” AF No. 16.4. Ms.
Murdoch replied to Mr. Berger by text saying, “Thank
you, Dear” with a smiley face emoji. AF No. 16.5. Ms.
Murdoch does not know why she used the sexually-offensive
term “Dear” toward Mr. Berger. AF No. 16.6.
Murdoch alleges that she was offended by Mr. Berger sending
her text messages when she was away from work and on
weekends. AF No. 17.1; ADF 3.2. Ms. Murdoch never expressed
to Mr. Berger that she was offended by him sending her text
messages outside of work hours. AF No. 17.2. Ms. Murdoch also
regularly sent text messages to Mr. Berger outside of work
hours. Id. Ms. Murdoch did not maintain any copies
of any texts from Mr. Berger which she contends were
offensive. AF No. 17.3.
Berger did maintain text messages between himself and Ms.
Murdoch, including the following string started by Ms.
Murdoch on February 18, 2015:
Darlene: You may have taken me to lunch at
Mona's request but I'm going to pretend its bc you
wanted to (smiley face emoji)
Roy: Do you pretend a lot?
Darlene: Oh Geez!
Roy: Bad answer. You know I won't let
you get away with that.
Darlene: I have an imagination and
that's all I'm saying!
AF No. 17.4. Ms. Murdoch maintains that the two texts sent by
Mr. Berger from the above exchange were inappropriate, but
that her communications sent to him were fine. AF No. 17.5.
Mr. Berger was asked during his deposition if he thought that
flirtatious banter is appropriate in the workplace, he
We are a very different kind of workplace, sir. We're a
very small organization with 24 or 25 people. By and large
we're close-knit as a family. Honestly it could be
construed or conceived as office culture. We're just
different. We're not a two- or three-thousand,
four-thousand-person operation and whatever flirtatious
banter there might have been was absolutely mutual and, I
believe in both our opinions [i.e., his and Ms.
Murdoch's] not offensive.
(Doc. 21-2 at 9-10 at 32-33).
asked (in a follow-up question) if he believed, given
Medjet's smaller size, that flirtatious banter is
acceptable, he answered:
No. I don't believe it's accepted. I believe
basically it's the way we're created as a family, it
happens. We're all close enough, we're in the same
work space, we know a lot about each other both personally
and professionally. That's the culture, frankly, that I
try to create in an organization.
(Doc. 21-2 at 10 at 33).
March of 2015, Ms. Murdoch was out of the office for a period
of time because of surgery for a tumor in her neck. AF No.
18.1. Ms. Murdoch contends that she was made uncomfortable by
Mr. Berger communicating with her that he wanted to come see
her while she was out for surgery. AF No. 18.2. The following
text string reflects communication between Mr. Berger and Ms.
Murdoch while she was out:
Roy (March 10): Good luck tomorrow. All will
be just fine.
Darlene: Thank you dear (smiley face emoji)
Roy: If you see this before surgery give
Clair my number . . . and ask her to text me when u are in
Roy (March 11): Let me know how ur doing if
u get ur phone on today.
Darlene (March 12): I'm up and doing ok.
Still have bad pain and soreness. They weren't able to
get all of the tumor bc of placement so in future if it grows
they will use radiation to clear it up.
Roy: That's good, I think. Left you a
vm. Call if you get a minute and up to it.
Roy: How are you doing?
Darlene: Just woke up to a nice bouquet of
flowers-thank you! Still painful but meds do help.
Roy: Hang. I'll come visit tomorrow. Ok
maybe I will just call!
Darlene: Haha you'd laugh if you saw how
bad I looked! I'll call when I rouse from drug induced
Roy (March 13): Good morning. Let me know
when u r awake and can take a call.
Darlene: I'm awake but miserable.
Couldn't sleep last night and pain is still bad. Not up
for chatting just yet. Maybe later in the day after a nap.
Thanks for checking on me.
Roy: Hang in.
Darlene (March 14): Is now a good time for a
Roy: Give me 30.
Roy (March 15): How r u doing today?
Darlene: About the same. Can't be
upright too long before necks (sic) gets tired and hurts but
shoulder area is better.
Roy: That's good I guess. Hang in.
AF No. 18.3.
those texts, Ms. Murdoch sent Mr. Berger an unsolicited
picture of the surgical scar on her neck with the message,
“I have a zipper?” AF No. 18.4. Mr. Berger
replied by saying, “I can go a million directions with
that but won't. Feel better today.” AF No. 18.5. In
her charge of discrimination filed with the EEOC, Ms. Murdoch