ORDER
Wilfrеd G. Caouette, proceeding pro se, and OfficeMax, Inc., have cross-moved for summary judgment on Caouette’s claim against the company for age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”). OfficeMax has also moved for summary judgment on Caouette’s claims for wrongful discharge, defamation, libel, and slander under New Hampshire law. Each side has objected to the other’s motion. 1 The court will treat Caouette’s request for other “relief’ in his motion as seeking to compel OfficeMax to answer certain interrogatories, to strike certain portions of his deposition transcript, and for sanctions. OfficeMax has filed a separate objection to any such relief.
I. The “Motion for Relief ’
Because Caouette’s motion seeks relief that, if granted, could potentially shape the universe of facts on which the summary judgment motions will be decided, the court will address that matter first. Caouette complains that OfficeMax has refused to answer some of his interrogatories without adequate justification. His motion fails to state, however, which interrogatories are at issue, simply attaching OfficeMax’s supplemental responses to interrogatoriеs 3 and 4. Those responses object to the interrogatories as, inter alia, “overly broad in scope and time,” but nevertheless provide information covering a more limited time period than that asked about.
The party seeking information in discovery over an adversary’s objection has the burden of showing its relevance.
See, e.g., Whittingham v. Amherst Coll,
Caouette also contends that his deposition testimony regarding complaints of sexual harassment against him submitted to OfficeMax should be stricken because the New Hampshire Department of Employment Security ' (“DES”) reportedly
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“deemed no misconduct” in deciding to award him unemployment benefits following his termination by OfficeMax. This argument rests on an incorrect premise. The department’s decisions are not “admissible in any court ... for the purpose of barring such court ... from making independent findings of facts and rulings of law under the doctrine of collateral es-toppel.” N.H.Rev.Stat. Ann. (“RSA”) § 282-A:180;
see also In re Walker,
Finally, Caouette requests “Court Discipline” against one of OfficeMax’s lawyers for asking to reschedule Caouette’s deposition following the unexpected hospitalizаtion of the lawyer’s wife for five days. When the lawyer explained this situation to Caouette, he responded in writing, “It is too bad about your wife, but it is not my concern .... So stop your griping and get it over with.” Nevertheless, Caouette also agreed to the postponement of his deposition until July 30, 2004, when it did in fact take place. It is apparent to the court that no sanctions against OfficeMax’s lawyer are appropriate.
II. The Summary Judgment Motions
A. Standard of Review
On a motion for summary judgment, the moving party has the burden of showing the absence of any genuine issue of material fact.
See Celotex Corp. v. Catrett,
B. Background Facts
Local Rule 7.2 requires that a memorandum submitted in support or in opposition to a motion for summary judgment “incorporate a short and concise statement of material facts, supported by appropriate record citations,” as to which the party contends there is or is not a genuine issue to be tried, as the case may be. Neither Caouette’s memorandum in support of his motion for summary judgment, nor his response to OfficeMax’s motion, complies with this mandate. Instead, these filings consist almost entirely of unverified statements, made without any reference to record documents or other admissible evidence. For purposes of OfficeMax’s motion for summary judgment, then, all of the properly suрported material facts' it' has set forth in its statement are deemed admitted. See L.R. 7.1(b) (2).
*138 In September, 1993, OfficeMax hired Caouette to work as a salesperson in its store in Nashua, New Hampshire. The store sells office supplies and furniture, as well as computers, software, and other business electronics. Caouette holds an undergraduate degree in accounting, a master’s degree in psychology, and the equivalent of a master’s in business administration. Prior to joining OfficeMax, he had worked as the comptroller of a nonprofit corporation, a business consultant, and an adjunct сollege professor.
Caouette acknowledges that “the one issue that seems to have plagued [his] employment [with OfficeMax] was problems with customers.” Caouette Dep. at 217. In fact, beginning in July, 1997, he received a number of written warnings arising out of his interactions with OfficeMax patrons and, in one instance, other employees. Nevertheless, OfficeMax promoted Caouette to the position of supervisor of the electronics department in the Nashua store in 1998.
Caouette’s 1999 performance review noted that Caouette had “a desire to share persоnal issues with staff and customers. More proffesional [sic ] conduct is needed.” Id. at 40, Ex. 1. While the review also stated that Caouette had “made good progress interacting with customers,” it added that “continued effort [was] needed.” Id. Caouette’s 1999 “Developmental Plan” noted that “[effective immediately, [his] interaction with staff, peers and supervisors should be focused on professionalism.” Id. at 68, Ex. 3.
In 2001, Caouette began communicating with OfficeMax’s regional human resources manager, Mary Ryan, about his future with the company. With the support of Thomas Huther, his store manager, Caouette was recommended for a manаgement training program, which he apparently completed. Caouette told Ryan in an e-mail of July 22, 2001, however, “I am willing to take a store management position as a stop gap measure, but it is not where I want to be. I HATE SALES. I HATE DEALING WITH IDIOTS FOR CUSTOMERS ....” Id. at 85, Ex. 6. Earlier that year, Caouette had received another warning for rudeness to a customer and a relatively poor rating on his “Performance Appraisal Form.”
In May 2002, a male co-worker, Karanja Durham, filed -a sexual harassment complaint against Caouette. The OfficeMax “Associates Handbook” requires employees to bring occurrences of sexual harassment to the attention of management. Durham alleged that Caouette had approached him and claimed to be a hermaphrodite with functioning female reproductive organs. Durham responded by walking away from Caouette, who nevertheless approached him ten minutes later to continue the discussion. Durham also related an earlier conversation in which Caouette had said “that he had special things about him including the fact that he has. female parts [and] hormones.” Caouette Dep. at 233, Ex. 17. In his deposition, Caouette admittеd making comments of this nature in front of Durham, but claimed that other employees present at the time had instigated the discussion.
In or around June 2002, OfficeMax promoted James Savarese to the position of “key carrying supervisor” of the Nashua location, a management-level position with duties that include opening and closing the store and acting as manager in the absence of any other managers. According to Caouette, Savarese was thirty-nine years old at the time and had been the supervisor of the furniture department of the Nashua store since approximately October 2001. Caouette, in contrast, was forty-nine at the time. Unlike Caouette, Savarese had never completed the management training program, but also did not *139 have a history of poor customer service or customer complaints. Due to his historically poor performance in those areas, Caouette was not qualified for the promotion, according to Ryan. Huther attests that Caouette’s age played no role in the decision not to promote him to the “key carrier” position.
Huther received two other sexual harassment complaints against Caouette in October 2002. In the first of them, a female cashier, Deanna Miller, alleged that Caouette responded to a question about his stated intention to dress as a woman for Halloween by saying that he was a hermaphrodite who menstruated and used to wear a bra. Caouette later wrote a letter to Huther claiming not to remember anything about the day in question due to medication he was taking for double pneumonia. Caouette also wrote that the complaint had arisen because Miller had “agreed not to say anything with the answers to her inapрropriate questions and has broken her word .... Deanna is taking advantage of someone who is on heavy medication and has not the full capacity to completely understand what is being asked.” Id. at 276-77, Ex. 27. In his deposition, Caouette denied making any of the statements Miller had found offensive, but also admitted writing the letter “to come up with an excuse for the fact that [he] had had that discussion with [her].” Id. at 284.
The second complaint came from another female cashier, Nicole Kelly, who claimed to have been talking about “a boy at school [she] liked” with Caouette when he mentioned that he had a female friend who regularly called him to engage in sex and asked Kelly whether she, too, wanted to have sex with him. Caouette Dep. at 267, Ex. 26. Caouette testified in his deposition that he had told Kelly that he had a friend with whom he was intimate but denied having asked Kelly for sex.
Huther investigated the cashiers’ complaints and forwarded the results on to the territorial human resources department, which recommended that Caouette receive a “Second Step Written Corrective Action” for his violations of company harassment policy. 2 As a result, Huther explained in a written memorandum to Caouette, he would be immediately terminated for “[a]ny further inappropriate actions” and had to restrict his further conversations with the complaining cashiers to “issues of business.” Id. at 301-802, Ex. 31. The document, dated November 29, 2002, also admonished that “no form or appearance of any type of retaliation will be tolerated” and that all information pertaining to the investigation had to remain confidential. Id.
Huther later received word from his assistant manager that Caouette had nevertheless engaged in discussions of the investigation with fellow employees, including a retaliatory comment he had made to one of the complainants. As part of the subsequent investigation, another employee, Jason Panagiotes, related a recent conversation with Caouette in which he had accused the complainants of fabricating the charges. Miller also submitted a statement that Caouette had approached her and said, “[I]t is great to be accused of something I did not do.” Huther Aff. ¶ 17, Ex. 10. In his deposition, Caouette acknowledged telling Panagiotes that coworkers had been “spreading rumors ... and making up stories” but denied that this was a reference to the sexual harassment complaints. Caouette Dep. at 316. Caouette also admitted that Miller heard him make the statement in question but *140 insisted that he had not been talking to her, only to himself as he walked away from her. Based on the results of Huther’s investigation, Caouette was terminated on January 2, 2003, for continued violation of OfficeMax policies. Huther attests that Caouette’s age played no role in this decision.
Caouette promptly filed a charge of age discrimination against OfficeMax with the New Hampshire Commission for Human Rights. The Equal Employment Opportunity Commission dismissed the complaint and issued a right-to-sue letter. Caouette then filed a pro se complaint against OfficeMax in this court, asserting claims under the ADEA as well as Title VII of the Civil Rights Act of 1964, the Privacy Act of 1974, and state law, and seeking to proceed in forma pauperis. After reviewing the complaint pursuant to 28 U.S.C. § 1915, the magistrate recommended dismissal of all of the claims except those asserting that OfficeMax (1) violated the ADEA and its state-law analog, RSA 354-A:7, by not promoting Caouette to key-carrying supervisor and later terminating him, and (2) defamed, libeled, and slandered him by wrongfully accusing him of sexual harassment and retaliation and disclosing these accusations to other employees. The court approved the magistrate’s recommendation without objection by either party.
C. Discussion
1. The Age Discrimination Claims
Caouette acknowledges in his first objection to OfficeMax’s motion for summary judgment that “[i]t is true [he] was not terminated due to age discrimination .... ” Objs. & Resp. to Def. Mot. for Summ. Judg. at 10. He also testified in his deposition that he does not believe he was fired on account of his age. Chouette Dep. at 119. Through these admissions, Caouette has waived any claim he intended to assert that his firing constitutеd discrimination in violation of either the ADEA or RSA 354-A:7.
See Cerqueira v. Cerqueira,
Caouette continues to claim, however, that OfficeMax illegally discriminated against him in failing to promote him to key-carrying supervisor. To make out a prima facie case, Caouette must show that (1) he was at least forty years old at the time, (2) he was qualified for the position, (3) he was denied the position, and (4) OfficeMax filled the position with a younger person with qualifications similar to Caouette’s.
Mesnick,
OfficeMax argues for summary judgment in the first instance based on Caouette’s lack of evidence that he was qualified for the position of key-carrying supervisor in 2002. Relatedly, OfficeMax contends that Caouette has failed to show pretext in its stated reason for not promoting him,
i.e.,
his “pattern of poor performance and that [Savarese] was better qualified.” Mem. Supp. Mot. Summ. Judg. at 17. Many courts have eschewed this kind of two-tiered argument in favor of a single inquiry into the plaintiffs evidence that his alleged lack of qualifications is a pretext
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for unlawful discrimination. 1 Barbara Lindeman
&
Paul Grossman,
Employment Discrimination Law
at 587 & n. 246 (3d ed.1996);
accord Rathbun,
A plaintiff can prove pretext in a variety of ways.
E.g., Santiago-Ramos v. Centennial P.R. Wireless Corp.,
As OfficeMax points out in its reply, Caouette fails to support any of these allegations with references to admissible evidence. A party opposing summary judgment “may not rest upon mere allegations or denials of the adverse party’s pleading, but ... by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuinе issue for trial.” Fed.R.Civ.P. 56(e);
see also Lewis v. City of Boston,
Even taken at face value, however, the assertions in Caouette’s objection do not establish a genuine issue as to whether OfficeMax’s stated reason for not promoting him amounts to pretext for age discrimination. Caouette essentially argues that OfficeMax passed him over for the promotion based on an unfairly developed view of him as a problematic employee. As the First Circuit has repeatedly explained, “[t]he ADEA does not stop a company from [not promoting] an employee for any reason (fair or unfair) or for no reason, so long as the decision ... does not stem from the person’s age.”
Hidalgo v. Overseas Condado Ins. Agencies, Inc.,
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Together with his own motion for summary judgment, Caouette submits a chart received from OfficeMax showing that everyone who made supervisor in the Nashua store within the two years preceding Savarese’s promotion, and the vast majority of those who made manager or assistant manager in the district in the preceding three years, was younger at the time of the action than Caouette was when he was passed over. Caouette argues that this history constitutes “direct proof of age discrimination.”
The court disagrees. The chart fails to indicate whether anybody else who may have been considered for each position was older or younger than the person actually hired or promoted, and the ages of those hired or promoted vary considerably; from twenty at one extreme to fifty-three at the other. Moreover, other than the length of time between each of the promotions and the initial hiring of the employee in question, the chart gives no clue as to the relative qualifications of any of them. The chart therefore shows no disparate treatment by OfficeMax in its hiring or promotion practices, on the basis of age, to which Caouette could have fallen victim.
See Hillstrom v. Best W. TLC Hotel,
Caouette has failed to come forward with any evidence that OfficeMax’s stated reason for failing to promote him actually served as pretext for age discrimination.
5
Accordingly, summary judgment for OfficeMax on Caouette’s ADEA claim is appropriate. Because such proof is also essential to Caouette’s claim of age discrimination in violation of New Hampshire law,
see Scarborough v. Arnold,
*143 2. The Defamation, Libel, and Slander Claims
In his deposition, Caouette identified Durham, Miller, Kelly, and Panagiotes as the only OfficeMax employees who had defamed him and conceded that he had not been defamed by any OfficeMax manager. Caouette also testified that, to his knowledge, all of the allegedly tortious utterances occurred during the course of the sexual harassment investigations and were not published to anyone outside of the company.
“To establish defamation, there must be evidence that a defendant failed to exercise reasonable care in publishing, without a valid privilege, a false and defamatory statement of fact about the plaintiff to a third party.”
Indep. Mech. Contractors, Inc. v. Gordon T. Burke & Sons, Inc.,
New Hampshire recognizes a qualified privilege for otherwise defamatory statements “ ‘if the facts, although untrue, were published on a lawful occasion, in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds of its truth,’ provided that the statements are not made with actual malice.”
Simpkins v. Snow,
A number of courts have recognized a similar privilege that shields employees’ reports to management of sexual harassment by their co-workers, given the complaining employees’ interest in preventing further abuse and the employer’s responsibility under federal law to do the same.
See, e.g., Miller v. Servicemaster by Rees,
*144 The court also concludes that the undisputed facts of this case satisfy the requirements of the qualified privilege as a matter of New Hampshire law. Caouette has admitted (1) making comments of the nature of those which Durham described in his complaint, (2) telling Panagiotes that people were spreading rumors and making up stories about him, and (3) saying “It is great to be accused of something I did not do” within Miller’s earshot. Although Caouette denied making the specifiс comments Miller related in her initial complaint, he acknowledged talking to her about dressing in drag for Halloween. Similarly, Caouette admitted telling Kelly that he had a friend with whom he was intimate, but denied asking Kelly for sex.
This record establishes that, while certain portions of the complaints might have been inaccurate to Caouette’s recollection, each of the complainants had a reasonable basis for believing his or her account to be true.
8
See Kuwik v. Starmark Star Mktg. & Admin., Inc.,
Although the New Hampshire Supreme Court has held that the presence of facts to support a defense of qualified privilege ordinarily presents a jury question,
e.g., Thomson v. Cash,
Conclusion
For the foregoing reasons, OfficeMax’s motion for summary judgment (document no. 33) is GRANTED. Caouette’s motion for summary judgment (document no. 21) is DENIED. Caouette’s motion to compel and for other relief (document no. 21) is also DENIED. OfficeMax’s motions in li-mine (document nos. 41, 42, and 43) are DENIED as moot. The clerk of court shall enter judgment accordingly and close the case. ■
SO ORDERED.
Notes
. Caouette, in fact, has filed two separate objections to OfficeMax's motion, one on November 19, 2004, and the other on December 9, 2004. The court has considered both.
. Caouette had received a “First Step Written Corrective Action” following Huther's investigation of Durham's complaint.
. Relatedly, Caouette asserts in his own motion for summary judgment that OfficeMax "used Secret Shoppers (difficult customers) in an attempt to discredit” his abilities as a salesperson.
. In his second objection to the summary judgment motion, Caouette complains that he cannоt procure affidavits from any OfficeMax employees who might support his claim because the company has instructed them not to talk to him. Caouette, however, could have issued deposition notices for these employees but apparently chose not to do. so. He also could have attempted to procure affidavits from the customers who thought him a capable salesperson. Indeed, Caouette claims in his first objection to have met some of these customers in public following his termination. In short, Caouette bears complete responsibility for his failure to marshal any evidence to support his age discrimination claim.
. Although Caouette does not make the argument in any of his summary judgment papers, he noted in his deposition that he thought himself better qualified than Savarese because Caouette had completed the management training course, while Savarese had not. However, "proof of competing qualifications will seldom, in and of itself, be sufficient to create a triable issue of pretext.”
Rathbun,
. Caouette argues in his objection that his state-law claim for wrongful discharge actually rests on the decision of the DES to award him unemployment benefits. As previously discussed, however, that decision has no relevance to this lawsuit.
. Courts have also held that like interests protect an employer's statement to its employees explaining that one of its co-workers has been dismissed fоr sexual harassment.
See, e.g., Garziano v. E.I. Du Pont De Nemours &
*144
Co.,
. In
Duchesnaye v. Munro Enters.,