BLACKWELL-MURRAY v. PNC BANK
Filing
25
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 8/8/2013. 8/9/2013 ENTERED AND COPIES E-MAILED.(sg, )
BLACKWELL-MURRAY v. PNC BANK
Doc. 25
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRISTIAN BLACKWELL-MURRAY,
Plaintiff,
v.
PNC BANK,
Defendant.
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CIVIL ACTION
NO.
12-5319
MEMORANDUM
BUCKWALTER, S. J.
August 8, 2013
Currently pending before the Court is Defendant PNC Bank’s (“PNC”) Motion for
Summary Judgment. For the following reasons, the Motion is granted in its entirety.
I.
FACTUAL BACKGROUND1
A.
Plaintiff’s Employment with PNC
On April 30, 2008, Plaintiff, Christian Blackwell-Murray, an African American male,
submitted an application (“Application”) for employment with Defendant PNC as a branch
manager. (Def.’s Mot. Summ. J., Ex. A, Dep. of Christian Blackwell-Murray (“Blackwell-
1
The factual history is taken from Defendant’s Statement of Undisputed Material Facts,
Plaintiff’s Response to Defendant’s Statement, and the supporting evidence submitted by the
parties. To the extent the parties agree on certain facts, the Court takes them as true for summary
judgment purposes. Because Plaintiff does not offer a separate recitation of the facts, other than
admissions or denials of Defendant’s allegations, the Court follows the chronology provided by
Defendant.
Dockets.Justia.com
Murray Dep.”) 39:3–40:14, Apr. 4, 2013.)2 On July 18, 2008, PNC’s Senior Vice President,
Banking Sales Manager, Judy Bell, offered Plaintiff employment for the De Novo Branch
Manager, Vice President position at PNC’s branch in East Bradford. (Blackwell-Murray Dep.
48:22–49:9 & Ex. 2.) Plaintiff accepted the offer and began work for PNC on August 4, 2008.
(Id. at 49:7–9 & Ex. 2.)
The job description for Plaintiff’s position was as follows:
Lead and direct all new branch sales and service activities and business
development/community activities to achieve profit, deposit growth, sales revenue,
unit production, market share and customer/employee satisfaction goals for the
office. Responsible for opening and managing a new branch with no initial customer
and deposit base. In the initial period, until significant customer/deposit base is
acquired, the focus will be on new business development by generating sales through
working the market and interacting with the local community. In addition, key
accountabilities include continuous development of branch staff, marketing events
in the community and the development and implementation of a sales strategy to
drive branch performance. The De Novo Branch Manager continuously works to
directly lead, coach and performance-manage the staff, as well as ensure the
successful development and performance of all employees in the office in the areas
of customer experience, service excellence, sales management, leadership and results.
(Id., Ex. 4.)
Plaintiff, however, testified that he was not fully responsible for his employees’
performance in the branch. (Blackwell-Murray Dep. 155:4–7.) Rather, his only job was to check
2
Defendant’s Statement of Facts contends that, on the Application, Plaintiff signed his
name acknowledging that everything in that document was true and accurate. (Id. at 40:5–11.)
When asked on the Application if he had ever been discharged, asked to resign or resigned by
mutual agreement from former employment, Plaintiff responded, “No.” (Blackwell-Murray
Dep., Ex. 1.) Contrary to that representation, however, Plaintiff had recently been discharged by
two former employers, Atlanta Bread Company and Blockbuster. (Def.’s Mot. Summ. J., Ex. B,
2006 Deposition of Christian Blackwell-Murray (“2006 Blackwell-Murray Dep.”) in Coleman v.
Blockbuster, 127:17–129:2, 135:6–24, May 2, 2006.) This purported misrepresentation,
however, was never cited by Defendant as a reason for Plaintiff’s eventual termination from
PNC.
2
certain logbooks, which contain notations of what each employee did and when they did it, and to
have morning huddles and scheduled operations meetings. (Id. at 155:11–18, 156:19–159:3,
169:19–169:5.) When he saw their signatures in the logbooks next to the notations, he knew that
his staff did what they were supposed to do. (Id. at 155:14-118.) He commented that, if he had
to go back and physically check everything, there would have been no point in having employees.
(Id. at 155:19–24, 157:15–21.)
On June 9, 2009, Plaintiff’s supervisor, Judy Bell, issued Plaintiff a Corrective Action
Form. (Blackwell-Murray Dep., Ex. 11.) The Form noted that a $48,000 wire was given to
Plaintiff by his Assistant Manager and Plaintiff called it in without verifying it. (Id.) While
embezzlement was being investigated, several operational integrity/procedural violations were
uncovered, including numerous teller violations in the teller envelopes, neglect of the audit
binder for many months, numerous safe deposit violations, dual control keys in unsecured
locations, and keys and combos in the vault being in complete disarray. (Id.) The Form also
remarked that, “[a]s the Branch Manager of the East Bradford Branch, Christian is responsible
for the operational integrity of the branch including insuring that PNC policies and procedures
are adhered to.” (Id.) At the bottom, the Corrective Action Form stated, “These are very serious
violations. Failure to resolve these issues or any additional violations will result in further
disciplinary action up to and including termination.” (Id.) Plaintiff discussed these violations
with Ms. Bell and signed off on the form. (Id.; Blackwell-Murray Dep. 147:11–154:24.) At his
deposition, however, Plaintiff blamed these problems on at least four different employees. (Id. at
147:11–154:24.) He explained that the employees had signed the log book indicating they had
done certain tasks when, in actuality, they had not. (Id.) Plaintiff then emphasized that he did
3
not believe that the Corrective Action had anything to do with his improper oversight of the
branch. (Id. at 148:12–15.) According to Plaintiff, Ms. Bell allowed the insubordination of his
employees to persist despite his complaints and despite Defendant’s clear policy to “carry out
supervisor’s work directions” in Defendant’s Employee Expectations Policy. (Pl.’s Resp.
Statement Undisputed Facts ¶¶ 13–14.)3
B.
Plaintiff’s Violations of PNC Policies and Code of Business Ethics
1.
PNC Policies at Issue
At some point during Plaintiff’s employment, several of PNC’s policies were implicated
by Plaintiff’s actions. First, PNC’s Code of Business Conduct and Ethics provides, in pertinent
part, “As a PNC employee, you are responsible for understanding and adhering to this Code.
Always act in a professional, honest, and ethical manner when conducting your activities with
and on behalf of PNC.” (Blackwell-Murray Dep., Ex. 7.) It goes on to state that:
Violating relevant laws, regulations, or this Code, or encouraging others to do so,
exposes PNC to risk, including risk to its reputation, and therefore may result in
disciplinary action up to and including termination of employment.
...
Business records should always be prepared honestly and accurately. We must never
be dishonest or deceptive in creating or maintaining PNC records, or otherwise
attempt to mislead PNC customers, management, auditors, or regulators.
(Id.) Plaintiff admits that he was trained on this Code and received an online copy of it.
(Blackwell-Murray Dep. 126:12–129:20.)
PNC also maintains a Bonding Policy, which provides:
3
For this proposition, Plaintiff makes broad citations to his deposition, which do not
seem to support his point. Moreover, Plaintiff does not attach his deposition to his brief, but
rather cites to the portions provided by Defendant. In doing so, he fails to note that some of his
cited pages are not provided by Defendant.
4
To be employed at PNC you must be covered under its fidelity bond at all times. If
PNC has a reasonable belief that you have engaged in a dishonest act (whether or not
it constitutes a crime), your coverage under the bond is suspended and you cannot
continue working at PNC. You cannot return to work at PNC unless and until your
bond coverage is reinstated.
...
Expectations and Responsibilities
You are expected to be truthful and honest at all times when working for and/or
representing PNC.
...
If PNC believes you may have committed a dishonest act, you automatically are not
bonded and you cannot remain at work. Depending on the circumstances, you
employment may immediately be terminated.
...
Examples
Some examples of dishonest acts that may suspend bond coverage and/or result in
termination of employment include, but are not limited to:
...
•
notarizing a document when the person does not sign the document in front
of you
(Blackwell-Murray Dep., Ex. 17.)
Finally, PNC’s Notary Policy provides in pertinent part:
The law requires that when a notary attests to a signature, the person whose signature
is being notarized must be present in front of the notary. This law protects not only
the individual requesting the notarization, but also the notary and PNC. Violations
of this law expose the notary and PNC to unnecessary risk.
It is also a violation of PNC’s Code of Business Conduct and Ethics for any
employee to ask a notary to attest to the signature of someone who is not present.
...
Any employee who engages in any of the above misconduct may be subject to
disciplinary action, up to and including termination of employment.
...
What if documents require notarization and the branch employee notary is not
available?
Every effort should be made to have a PNC notary present, especially for Home
Equity Loan and Line of Credit closings. If a notary is unavailable, ask the customer
to:
C
Take the documents to another PNC location and have the documents
notarized by that branch employee notary
5
C
Take the documents to a notary outside of the bank.
In either case, the customer(s) must be in front of the notary when any document is
notarized.
(Blackwell-Murray Dep., Ex. 12.) Plaintiff indicated that he was familiar with these policies and
was trained to know that (1) customers had to be present when getting a loan document notarized
and (2) if a notary was unavailable, the customer had to take the documents either to another
PNC branch or to a third-party notary outside the bank. (Blackwell-Murray Dep. 173:14–24,
176:7–16, 180:17–181:13.) Plaintiff testified, however, that he was told by “everyone at PNC”
that he simply had to get the loan notarized, whether or not the customer was actually present.
(Id. at 174:12–185:11.)
2.
Plaintiff’s Alleged Violations of Policies
In early June 2009, PNC terminated the employment of the only notary working at the
East Bradford Branch, meaning that for the remainder of Plaintiff’s employment, there was no
notary onsite. (Id. at 90:11–20, 183:15–185:11.)
Plaintiff was concerned that if he had
customers take the loan documents out of the building to get notarized and they did not bring
them back within the time allotted, the loan would be null and void requiring it to be done all
over again. (Id. at 180:21–181:6.) He went on to explain that, “you will receive loan errors
which will go against your—it went against your customer service score. It went against your
bonus for the quarter for the year. It went against your branch manager CIQ score. It affected
basically all of your metrics if you got loan errors.” (Id. at 181:7–13, see also id. at 90:11–20.)
As such, between June 22, 2009 and September 5, 2009, Plaintiff, on at least five
occasions, had loan documents notarized without the customer present. (Id. at 202:3–209:11.)
He explained that this was to “maintain PNC’s brand ease, confidence and achievement.” (Id. at
6
209:12–15.) Plaintiff claimed that having documents notarized without the customer present was
“industry standard everywhere.” (Id. at 176:17–177:24.) He also alleged that Market Manager
Matthew Farnsworth and PNC Branch Manager Christopher DiBello—both of whom are
Caucasian—also had loan documents notarized without the customer present. (Id. at
177:10–178:20.) Plaintiff did not know if anyone in management at PNC was aware that
DiBello and Farnsworth had done this. (Id. at 178:21–179:8.) He also admitted that Farnsworth
told him that PNC frowned upon this practice, but it probably would not do anything about it.
(Id. at 177:15–179:8.) Finally, Plaintiff conceded that, although his supervisor, Bell, told him
that he could take documents to another branch to have them notarized, she did not specifically
say that he could do so without the customer present. (Id. at 185:2–11, 188:9–20.)
C.
Plaintiff’s Termination from PNC
In early September 2009, PNC customer service representative Katherine Norton called
the Employee Relations Information Center (“ERIC”) to report Plaintiff’s actions in having
documents notarized without the customer present. (Id. at 137:11–140:13, 195:23–200:6.) An
investigation was commenced by PNC to determine the truth of these allegations. (Id. at
139:1–140:18, 200:17–202:4.) On September 18, 2009, PNC investigators Rich Kilmon and
Laurie Kane met with Plaintiff, who admitted to taking loan documents to a former colleague and
notary at the Bank of American branch in Glenside, Pennsylvania, and asking her to notarize
them without the customers being present. (Id. at 203:10–206:6.) This occurred on at least five
occasions. (Id. at 214:2–218:23.) Plaintiff also signed a statement admitting as follows:
I have taken 5 loans to be notarized by an outside party. I have done this in order to
maintain PNC’s Brand of Ease, Confidence, and Achievement. I put myself in the
customer’s position and asked myself “How would I feel if my bank asked me to go
to another establishment and get a document notarized.” Therefore, I took the
7
documents to a 3rd party.
The 3rd party person is an ex co-worker of mine (I do not want anything to happen to
her. She is an elderly woman that was doing me a favor. I will take full
responsibility of any consequences that may follow).
I would take pages 2 & 3 of the “Open Ended Mortgage” to my contact. Page 2
would be used to verify my signature in the witness field, and the client’s signature
would be verified by the signature line on a copy of the client’s Driver’s Licenses.
If the signatures matched, my contact would notarize the documents.
I would like to state for the record that my intentions were good. I do not have the
urge, nor the need, to cause any harm to my clients, or to my contact. I just wanted
the loan closing process to be easy and non-stressful for my clients.
(Blackwell-Murray Dep., Ex. 15; see also Blackwell-Murray Dep. 206:10–207:5.)
On September 21, 2009, Kilmon called Plaintiff to inform him that he was being
terminated from PNC employment. (Id. at 221:5–14.) Kilmon explained that the reasons were
Plaintiff’s violation of the Notary Policy and the earlier incident with his assistant manager in
June 2009. (Id. at 222:1–18.)
D.
Alleged Unpaid Compensation
Plaintiff’s base salary for his first year of employment with PNC was $80,000.
(Blackwell-Murray Dep., Ex. 2.) He also had the opportunity to earn additional compensation
both for his length of service and through the Branch Manager Incentive Plan. (Id.) Under the
Third Year DeNovo for Growth Branch Management Incentive Plan, Managers could earn
quarterly annual incentives based on their ability to grow their individual branch’s controllable
contribution, which is essentially the branch’s customer revenue less controllable branch
expenses. (Blackwell-Murray Dep., Ex. 6.) For the annual incentive, the branch manager
serving in that role at the end of the branch’s three-year period was eligible for that award. (Id.)
If, however, the Branch Manager at the end of the third year had only been at that branch for a
8
portion of the year, the Branch Manager would be eligible for a prorated bonus based on total
time spent managing the branch during the third year. (Id.) “Any prior Branch Managers of that
branch would not be eligible for the bonus.” (Id.)
Under the Incentive Award Payment Schedule, “[a]ll quarterly incentive components are
typically paid in the 2nd pay of the 2nd month of the following quarter.” (Id. (emphasis omitted).)
The annual bonus is typically paid “in the 2nd pay of the 2nd month following the end of the three
year period.” (Id. (emphasis omitted).) Further, it provides that “[e]mployees must be employed
by Retail Banking and have an ‘active’ status on Compass (payroll system) as of the payroll
processing date, generally the Thursday of the week prior to the incentive pay date, in order to
receive an incentive award. . . . Employees inactive as of the payroll processing date will not
receive an incentive payment.” (Id.) The Plan explicitly notes that “incentive considerations
should never be a factor behind any customer conversation or transaction,” and that
“[u]nnecessarily processing or in any other way manipulating transactions for the purpose of
personal incentive gain” is contrary to the purpose and spirit of the Plan. (Id.)
Pursuant to this Plan, Plaintiff claimed entitlement to both an annual bonus for 2009 and
a third quarter incentive bonus. (Blackwell-Murray Dep. 116:11–117:5, 120:3–17.) Specifically,
he alleged that by the time of his termination, he had already exceeded his goals for the third
quarter, which was about to end in another two or three days, and he had already hit the yearly
goals for 2009 at that point in time too. (Id. at 120:3–10.) Plaintiff admitted, however, that no
one told him that he would be paid any bonus if he were no longer employed by the branch. (Id.
at 116:3–10, 325:1–23.)
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E.
Plaintiff’s Racial Discrimination Claims
On September 23, 2009, shortly after his termination, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the
Pennsylvania Human Rights Commission (“PHRC”) alleging race discrimination against PNC.
(Blackwell-Murray Dep., Ex. 18.) As evidence of racial discrimination, Plaintiff first testified
that he believed he was hired by his supervisor, Bell, to fulfill a diversity quota. (BlackwellMurray Dep. 54:4–22, 72:1–19.) Notably, however, he did not know if there were any other
candidates who were minorities that Bell interviewed and no one ever told him that he was hired
only for diversity purposes. (Id. at 72:20–73:7.) Plaintiff went on to note that Bell subjected him
to some discriminatory treatment towards the end of his employment by tracking his scheduled
appointments, without good reason, so she would know his every move. (Id. at 74:6–75:14.)
Plaintiff conceded, however, that all of his staff, comprised of about fifteen people, had raised
issues about his hours and about him not being in the branch.4 (Id. at 75:15–76:3, 146:1–14.)
Additionally, Plaintiff described discrimination against an African American
girl—Tynika Stevens—who was hired to work in the branch. (Id. at 289:12–291:11.) When Bell
would come into the office, she would always have something negative to say about the way Ms.
Stevens dressed, while she did not make any comments to Kathryn Norton, who he described as
similarly dressed. (Id.) Neither woman was ever disciplined for their dress. (Id.) In addition,
Plaintiff indicated that he wanted to promote Ms. Stevens to a personal banker position that had
4
Plaintiff argues that Bell’s harassment included her encouragement and allowance of
insubordination by Plaintiff’s employees. (Pl.’s Resp. Statement Undisputed Facts ¶ 39.) For
this proposition, however, Plaintiff cites to portions of depositions and/or exhibits not included
by either party. As such, the Court cannot accept such allegations as true.
10
opened up at the branch, but she did not get it. (Id. at 291:13–294:14.) He did not know who got
the position because it was filled after his termination. (Id.)
Finally, Plaintiff complained that, after his termination, Ms. Bell spoke with other
potential employers and, as a result, he did not get sought-after positions with other banks. (Id. at
294:15–301:14.) Notably, however, Plaintiff did not know what she said or even who exactly
she spoke with. (Id.) Further, he was only able to speculate that his inability to obtain a new
position was because of things said by Bell—as opposed to his former employers at Bank of
America—because his interviews were great, but he was denied the positions after the
background checks were completed. (Id. at 299:11–300:10.)
Ultimately, Plaintiff never heard Bell say anything about his race, make any racial slurs,
or comment that she did not want to hire or work with African Americans. (Id. at 288:9–289:1.)
Further, he never heard anyone complain of Bell discriminating against them because of either
their race or ethnicity. (Id. at 289:2–5.) Nor did Plaintiff ever call ERIC to complain of any
discrimination. (Id. at 130:9–20.)
F.
Plaintiff’s Racial Discrimination Claims and Complaints Against Other
Employers Both Pre- and Post-Employment with PNC
Plaintiff’s work history reflects other allegations of racial discrimination against
employers. First, Plaintiff was employed as a store manager with Blockbuster from November
2003 until he was terminated in January 2005. (Blackwell-Murray Dep. 16:9–22.) Subsequently,
on August 24, 2005, Plaintiff, along with others, filed a complaint alleging that Blockbuster had
discriminated against them on the basis of race in violation of the Civil Rights Act of 1964 and
42 U.S.C. § 1981. (Def.’s Mot. Summ. J., Ex. C.) On June 30, 2008, Plaintiff’s intentional
discrimination claims under § 1981 were dismissed on summary judgment because Plaintiff
11
failed to establish that he was terminated under circumstances that gave rise to an inference of
unlawful discrimination. Coleman v. Blockbuster, No. Civ.A.05-4506, 2008 WL 2622912, at *6
(E.D. Pa. June 30, 2008). His Title VII claims were dismissed for failure to exhaust
administrative remedies. Id. at *3.
Second, in June 2005, Bank of America hired Blackwell-Murray as a Banking Center
Manager. (Blackwell-Murray Dep. 18:1–13.) Plaintiff failed a charge of discrimination against
Bank of America in late 2007, while still employed, claiming that he was being discriminated
against based on his race. (Id. at 26:13–27:12.) According to Plaintiff, the investigator at the
EEOC dismissed the charges because “the people that were doing this to [him] . . . [were] all the
same race.”5 (Id. at 31:1–8.)
Finally, Plaintiff was employed by Dollar Tree from April of 2012 to September of 2012.
(Id. at 10:21–24.) He was terminated and told it was because of “store appearance.” (Id. at
11:14–20.) Plaintiff indicated that he brought an internal complaint against his district manager
for harassment. (Id. at 12:3–14, 27:17–28:24.)
G.
Procedural History of Present Litigation
Following issuance of a right to sue letter from the EEOC, Plaintiff initiated the current
lawsuit on September 19, 2012 alleging: (1) race discrimination under Title VII; (2) race
discrimination under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat § 951, et seq.; (3)
5
Plaintiff’s Response to Defendant’s Statement of Undisputed Facts argues that “it
would be directly against the EEOC guidelines to dismiss a claim on the basis that the
discriminating parties were members of the same protected class.” (Pl.’s Resp. Statement
Undisputed Facts ¶ 8 (citing EEOC guidelines). Given that Plaintiff himself testified as to what
he was told about the merits of his case, it is irrelevant whether what he was told would have
been against EEOC guidelines.
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a claim under the Wage Payment and Collection Law (“WPCL”), 43 P.S. 260.1, et seq.; and (4) a
claim for tortious interference with prospective contractual relations. Following a course of
discovery, Defendant PNC filed a Motion for Summary Judgment as to all counts of the
Complaint on May 31, 2013. Plaintiff filed a Response on June 20, 2013, and Defendant
submitted a Reply Brief on June 27, 2013. The Motion is now ripe for judicial consideration.
II.
STANDARD OF REVIEW
Summary judgment is proper “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A factual dispute is
“material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). For an issue to be “genuine,” a reasonable fact-finder must be able to
return a verdict in favor of the non-moving party. Id.
On summary judgment, the moving party has the initial burden of identifying evidence
that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv.
Elec. & Gas Co., 364 F.3d 135, 145–46 (3d Cir. 2004). It is not the court’s role to weigh the
disputed evidence and decide which is more probative, or to make credibility determinations.
Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi’s IGA
Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court
must consider the evidence, and all reasonable inferences which may be drawn from it, in the
light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg
Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the
13
evidence presented by both sides, the court must accept as true the allegations of the non-moving
party, and “all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
Although the moving party must establish an absence of a genuine issue of material fact,
it need not “support its motion with affidavits or other similar materials negating the opponent’s
claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by “pointing
out . . . that there is an absence of evidence to support the nonmoving party’s claims.” Id. at
325. Once the movant has carried its initial burden, the opposing party “must do more than
simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec., 475
U.S. at 586. “[T]he non-moving party must rebut the motion with facts in the record and cannot
rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley
Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). If the non-moving party “fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex,
477 U.S. at 322. Moreover, the mere existence of some evidence in support of the non-movant
will not be adequate to support a denial of a motion for summary judgment; there must be
enough evidence to enable a jury to reasonably find for the non-movant on that issue. Anderson,
477 U.S. at 249–50.
III.
DISCUSSION
14
A.
Claims Under Title VII and the PHRA6
Title VII of the Civil Rights Act of 1964 provides in relevant part that it is an “unlawful
employment practice for an employer to . . . discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin. . . .” 42 U.S.C. § 2000e-2(a)(1). To establish a claim of discrimination based on
disparate treatment, a plaintiff must show that an employer had a racially discriminatory animus
against an employee, and that the animus resulted in a challenged action, such as dismissal,
failure to promote, or failure to hire. Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 914 (3d Cir.
1983).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the United States Supreme
Court set forth the precise framework for analyzing a claim based upon racial discrimination
where, as here, there is no direct evidence of discrimination. First, the plaintiff must prove by a
preponderance of evidence a prima facie case of discrimination. McDonnell Douglas, 411 U.S.
at 802. Next, if the plaintiff establishes a prima facie case of discrimination, a “presumption” of
discrimination is created and the burden of production shifts to the defendant to articulate some
legitimate nondiscriminatory reason for the adverse employment action. Id. at 802–03. To
sustain this burden, “[t]he defendant need not persuade the court that it was actually motivated by
the proffered reasons.” Texas Dept. of Cmty. Affairs v. Burdine 450 U.S. 248, 254 (1981). The
inquiry concerning whether the defendant has met its burden of production “can involve no
6
Because the analysis required for adjudicating Plaintiff’s Title VII and PHRA claims is
identical, the Court will consider those two claims together. See Goosby v. Johnson & Johnson
Med., Inc., 228 F.3d 313, 317, n.3 (3d Cir. 2000).
15
credibility assessment,” since “the burden-of-production determination necessarily precedes the
credibility-assessment stage.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)
(emphasis in original). The defendant satisfies its burden of production, and rebuts the plaintiff's
prima facie showing of discrimination, simply by introducing admissible evidence that, if taken
as true, would permit a finding that the challenged employment action was taken for legitimate,
nondiscriminatory reasons. Id.
Finally, if the employer meets its burden of production, the presumption of discrimination
created by plaintiff’s prima facie case “drops out of the picture.” Id. at 511 (citing McDonnell
Douglas). In order to establish that the defendant is liable for illegal employment discrimination,
the plaintiff must ultimately convince the trier of fact that a discriminatory animus was the real
reason for the adverse employment action at issue. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.
1994). “Liability cannot be established upon a jury’s mere disbelief of the defendant’s proffered
reasons for an adverse employment action, but rather upon the jury’s affirmative belief of the
plaintiff’s contention that the action was taken on the basis of an impermissible discriminatory
criterion.” Mitchell v. Miller, 884 F. Supp. 2d 334, 370–71 (W.D. Pa. 2012) (emphasis in
original) (citing St. Mary’s Honor Ctr., 509 U.S. at 519 (“It is not enough, in other words, to
disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional
discrimination.”) (emphasis in original). “Nevertheless, evidence suggesting that an employer’s
proffered reasons for an adverse employment action are false, when coupled with a plaintiff’s
prima facie case, may sufficiently undermine the employer’s credibility to enable a reasonable
trier of fact to conclude that illegal discrimination has occurred.” Mitchell, 884 F. Supp. 2d at
371 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147–48 (2000)).
16
In the case at bar, Plaintiff has no direct evidence of discrimination. As such, the Court
must apply the McDonnell Douglas burden-shifting analysis. Defendant asserts that, under this
analysis, Plaintiff’s claim fails in two respects. First, it contends that Plaintiff cannot establish
his prima facie case. Moreover, it argues that, even assuming the existence of the prima facie
case, the claim fails because Plaintiff cannot show that Defendant’s articulated reason for
terminating his employment was a pretext for engaging in race discrimination. The Court
examines each argument individually.
1.
Prima Facie Case
A plaintiff must first establish a prima facie case of race discrimination by showing that
(1) he was a member of a protected class; (2) he was qualified for his position; (3) he had an
adverse action taken against him; and (4) similarly situated individuals who were not members of
the plaintiff’s protected class were treated more favorably. McDonnell Douglas, 411 U.S. at 802;
see also Kimble v. Morgan Props., 241 F. App’x 895, 897–98 (3d Cir. 2007). Because the prima
facie inquiry in any case is fact-specific, “[t]he touchstone of the inquiry is whether the
circumstances giving rise to an inference of discrimination are of evidentiary value, not whether
they fit into a mechanical formula.” Cobetto v. Wyeth Pharms., 619 F. Supp. 2d 142, 153 n.3
(W.D. Pa. 2007) (emphasis in original).
In the present case, it is undisputed that Plaintiff, as an African American, is a member of
a protected class and that he suffered an adverse employment action in the form of termination
from employment. Defendant now argues that Plaintiff has failed to establish either that he was
qualified for his position or that similarly situated individuals who were not members of his
protected class were treated more favorably.
17
a.
Whether Plaintiff Was Qualified for the Position
“A court considering a discrimination claim must evaluate the question of the ‘plaintiff’s
qualifications for purposes of proving a prima facie case by an objective standard.’” Sempier v.
Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (citing Weldon v. Kraft, Inc., 896 F.2d 793,
798 (3d Cir. 1990)). “[W]hile objective job qualifications should be considered in evaluating the
plaintiff's prima facie case, the question of whether an employee possesses a subjective quality,
such as leadership or management skill, is better left to” consideration of whether the employer’s
nondiscriminatory reason for discharge is pretext. Weldon v. Kraft, 896 F.2d 793, 798 (3d Cir.
1990). “Thus, to deny the plaintiff an opportunity to move beyond the initial stage of
establishing a prima facie case because he has failed to introduce evidence showing he possesses
certain subjective qualities would improperly prevent the court from examining the criteria to
determine whether their use was mere pretext.” Sempier, 45 F.3d at 729 (quoting Weldon, 896
F.2d at 798–99).
In the present case, Defendant argues that Plaintiff was not qualified for his position due
to his violation of the Notary Policy. As described in detail above, the Notary Policy expressly
provides that “the law requires that when a notary attests to a signature, the person whose
signature is being notarized must be present in front of the notary.” (Blackwell-Murray Dep., Ex.
12.) The PNC Bonding Policy then goes on to state that notarizing a document when the person
does not sign a document in front of you is considered a “dishonest act that may suspend bond
coverage and/or result in termination of employment.” (Blackwell-Murray Dep., Ex. 17.)
Finally, the Bonding Policy provides that “[t]o be employed at PNC you must be covered under
its fidelity bond at all times. If PNC has a reasonable belief that you have engaged in a dishonest
18
act (whether or not it constitutes a crime), your coverage under the bond is suspended and you
cannot continue working at PNC.” (Id.)
Defendant now contends that Plaintiff admitted to violating the Notary Policy by taking
his customers’ loan origination documents to a third-party notary and having them notarized
without the customers present. Having done so, he was no longer covered under PNC’s fidelity
bond, meaning that he was no longer qualified to work at PNC.
While Defendant’s argument is factually correct, it is not proper for consideration at this
element of the prima facie case. Defendant does not contend that Plaintiff lacked the requisite
qualifications, education, experience, or skills for the branch manager position from which he
was terminated. Moreover, Defendant has presented no witnesses to explain whether Plaintiff’s
violation of the Notary Policy automatically rendered him unfit or unqualified for his position. In
other words, it remains unclear whether Plaintiff’s actions resulted in his “disqualification” from
employment or simply gave PNC a legitimate reason to terminate his employment. This
contention is better left for consideration at the pretext stage of the McDonnell-Douglas analysis.
Accordingly, the Court finds that, for purposes of summary judgment review, Plaintiff has
adequately satisfied this element of his prima facie case.
b.
Whether Similarly Situated Individuals Who Were Not
Members of Plaintiff’s Protected Class Were Treated More
Favorably
To satisfy the fourth prong of the prima facie case, a plaintiff must establish “that
similarly situated individuals outside the plaintiff’s class were treated more favorably [that he].”
Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 273–74 (3d Cir. 2010). Alternatively, the
plaintiff must prove that he was “terminated under circumstances that give rise to an inference of
19
unlawful discrimination such as might occur when the position is filled by a person not of the
protected class.” Jones v. Sch. Dist. of Phila. 198 F.3d 403, 410–11 (3d Cir. 1999) (quotation
omitted).
Defendant argues that Plaintiff has not proffered any evidence that PNC treated him
differently than similarly-situated employees who were not African-Americans or terminated
under circumstances giving rise to an inference of unlawful discrimination. By his own
admission, Plaintiff violated the Notary Policy by taking loan origination documents to thirdparties to be notarized without having the customer present. He explained that he did so to avoid
loan errors, which went against his customer service score and his bonus for the year. These
violations were reported to PNC’s Employee Relations Information Center by a customer service
representative at Plaintiff’s branch. Thereafter, PNC investigators Kilmon and Kane met with
Plaintiff, who admitted to his violations and signed a statement to that effect. Shortly thereafter,
Plaintiff was terminated from PNC employment due to his violation of policy.
Plaintiff now fails to present any evidence that his termination was racially motivated.
Indeed, Plaintiff’s sole argument setting forth his proof as to the fourth element of his prima facie
case is as follows:
There are several reasons why there is a genuine issue of material fact as to
whether Defendant’s actions give rise to an inference of intentional discrimination.
Plaintiff was assigned to the Brandywine region, where there are no AfricanAmerican managers. Blackwell-Murray Dep. at 48-49. He was previously selected
to report to the Philadelphia region. Blackwell-Murray Complaint ¶ 36. Defendant
was well aware of the racial animus of the customers in Plaintiff’s region.
Blackwell-Murray Dep. at 106-107. When Plaintiff complained of incidents of
racism during his sales visits, he was mocked by his supervisor. Id. BlackwellMurray Complaint ¶ 53. Despite Plaintiff’s high sales metrics, his subordinates
refused to follow his orders. Blackwell-Murray Dep. 80, 139-140, 146-150. Plaintiff
complained to management about his employees violations of company policy,
however he received no assistance and his employees were not reprimanded.
20
Blackwell-Murray Dep. at Ex. 10. Finally, Plaintiff was terminated despite the fact
he was following instructions of his supervisor and the established practices of the
East Bradford branch. Id. at 221. Similarly situated Caucasian managers were
treated more favorably than Plaintiff. Id. at 177-185.
(Pl.’s Opp’n Summ. J. 8.)
This argument is replete with problems. First, Plaintiff’s allegations are largely
undocumented. To the extent Plaintiff cites to his Complaint, the Court deems these assertions
unsupported by evidence for purposes of summary judgment review. “Because a motion for
summary judgment is designed to go beyond the pleadings, a plaintiff may not successfully
oppose a summary judgment by merely resting on the allegations contained in his complaint.”
Heffron v. Adamar of NJ, Inc., 270 F. Supp. 2d 562, 576 (D.N.J. 2003) (citing Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990)). Moreover, many of Plaintiff’s evidentiary citations
do not support the factual assertions they accompany. For example, Exhibit 10 to Plaintiff’s
deposition is a report prepared by Bell that (a) describes her conversation with Plaintiff; (b)
indicates that Plaintiff’s inability to gain the support of his team is affecting his performance; and
(c) encourages Plaintiff to seek support from his mentor. It does not show, as Plaintiff suggests,
that he complained about his employees and was given no assistance. (Blackwell-Murray Dep.,
Ex. 10.)
Second, Plaintiff has failed to create a genuine issue of fact as to whether similarly
situated individuals were treated more favorably than him. Plaintiff testified that Market
Manager Matthew Farnsworth and PNC Branch Manager Christopher DiBello—both of whom
are Caucasian—also had loan documents notarized without the customer present. (BlackwellMurray Dep. 177:10–178:20.) Crucially, however, Plaintiff never saw either of these individuals
have documents notarized without the customer present. (Id. at 177:19–24.) Rather, he bases his
21
belief based on “conversations” with Farnsworth who stated that he had done that before. (Id. at
177:23–20.) Moreover, Plaintiff conceded (1) that he had no information that anyone in
management at PNC had any knowledge that Farnsworth was doing this, such that he could have
been penalized, and (2) that Farnsworth told him that this practice was frowned upon by
management. (Id. at 178:21–8.) Finally, Plaintiff admitted that he never had any
authorization—let alone direction—from his supervisor Bell to have documents notarized
without the customer present. (Id. at 185:2–11.)
Third and finally, Plaintiff has failed to establish that any reasonable jury could find that
he was terminated under circumstances that give rise to an inference of unlawful discrimination.
Plaintiff has not shown that he was replaced by a Caucasian. Moreover, notwithstanding his
allegation that he was suddenly assigned to the racially-hostile Brandywine region, after
originally being selected for the Philadelphia region, Plaintiff’s offer letter, dated August 4, 2008,
shows that he was explicitly offered a position as a branch manager in the East Bradford branch
in the Brandywine region. No evidence exists that the Brandywine region had racially biased
customers.7
7
Indeed, the sole testimony on this issue came from Plaintiff testifying to a conversation
with Ms. Bell as follows:
Q.
Did Ms. Bell live in the Brandywine region?
A.
Yes, she did.
Q.
And did she tell you that there was racial tension?
A.
Yes.
Q.
When?
A.
When she used to stop in. I don’t remember the date when she used to stop
in my office.
Q.
Any witnesses to these conversations?
A.
No. It was just me and Judy.
Q.
Are you aware today as you sit here that Ms. Bell’s husband is African
American?
22
As to his supervisor, Bell, Plaintiff admitted that he never heard her say anything about
his race, make any racial slurs, or comment that she did not want to hire or work with African
Americans. (Id. at 288:9–289:1.) Further, he never heard anyone complain of Bell
discriminating against them because of either their race or ethnicity.8 (Id. at 289:2–5.)
Lastly, to the extent Plaintiff contends that his employees’ insubordination was condoned
and perpetuated by PNC upper management despite his complaints, Plaintiff’s allegations are
insufficient to establish discriminatory motive. Plaintiff has not introduced any evidence
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
I have been informed.
And her children are of mixed race?
I’ve been informed.
And are you aware that they live in the East Bradford region?
Correct. That’s all the reason why she would know there is racial tension out
there.
Did she give you any examples of that racial tension when she spoke with
you?
She spoke vaguely. She didn’t go into detail.
When she spoke vaguely, what did she say to you?
You know people ignoring her children sometimes when they go to the
playground.
(Blackwell-Murray Dep. 106:1–107:11.) Such evidence does not allow for any reasonable
factfinder to determine that the residents of the Brandywine region, particularly PNC customers,
were discriminatory against African-Americans or that PNC purposely assigned Plaintiff to that
branch in order to discriminate against him.
8
Plaintiff’s description of Bell’s behavior towards African American branch employee
Tynika Stevens is not probative of racial animus. As noted above, Plaintiff testified that Bell
would always negatively comment on Stevens’s dress as being inappropriate, while not making
such comments about Kathryn Norton who, in Plaintiff’s opinion, was similarly dressed.
(Blackwell-Murray Dep. 289:12–291:11.)
Plaintiff has not presented any testimony from either Bell or Stevens regarding this
situation. Nor has Plaintiff offered any objective basis upon which a reasonable jury could
conclude that Bell’s comments to Stevens were unfounded or based on her race. Most
importantly, however, Plaintiff has conceded that Stevens was never reprimanded or otherwise
disciplined for her dress. Accordingly, this alleged incident does not establish an form of racial
animus.
23
regarding the racial composition of his employees. Nor has Plaintiff made any showing—either
through direct or circumstantial evidence—that his employees’ insubordination was racially
motivated rather than as a result of his own leadership deficiencies. Indeed, Plaintiff admitted
that he was not aware of any racial comments by his employees. (Blackwell-Murray Dep.
85:3–24.) As to Plaintiff’s contention that PNC management did nothing about the
insubordination and actually encouraged such behavior, Plaintiff has put forth nothing to support
this allegation or to show that it was anybody else’s job but his to supervise his employees.
Indeed, the evidence shows that it was Plaintiff’s job to “continuously work[] to directly lead,
coach and performance-manage the staff, as well as ensure the successful development and
performance of all employees in the office in the areas of customer experience, service
excellence, sales management, leadership and results.” (Blackwell-Murray Dep., Ex. 4.)
Further, Plaintiff was repeatedly advised of his responsibility to gain support of and lead his team
of employees, and to ensure that the employees adhered to PNC policies and procedures.
(Blackwell-Murray Dep., Exs. 10 & 11.) In other words, Plaintiff has not produced one single
piece of evidence—beyond the allegations in his Complaint and Response Brief—that any
manager at PNC encouraged or condoned this behavior by the branch employees.
In short, Plaintiff has not satisfied the fourth element of his prima facie case. He presents
no evidence of racial comments or racially motivated behavior. Further, he fails to create any
inference of discrimination by showing that he was replaced by someone outside of his protected
class or that similar-situated PNC employees outside of his protected class were treated more
favorably. Given the complete dearth of evidence, the Court does not find the existence of any
genuine issue of material fact on this point.
24
2.
Whether Defendant’s Legitimate Non-Discriminatory Reason for
Terminating Plaintiff’s Employment Was Pretextual
Nonetheless, even assuming arguendo, that Plaintiff could establish a prima facie case,
his claim of disparate treatment founders at the second and third steps of the McDonnell Douglas
analysis. As noted above, once a plaintiff sets forth a prima facie case of discrimination, the
burden shifts to the employer to set forth a legitimate non-discriminatory reason for the
challenged adverse employment actions. All the employer need do at this juncture is introduce
admissible evidence that, if taken as true, would “permit a finding that the challenged
employment action was taken for legitimate, nondiscriminatory reasons.” Mitchell, 884 F. Supp.
2d at 370 (emphasis in original).
Defendant, in this case, has done so. As set forth in detail above, Plaintiff, by his own
admission, repeatedly violated PNC’s Notary Policy, which prohibits having documents
notarized when the customer does not sign the document in front of the notary. That Notary
Policy clearly states that “[a]ny employee who engages in any of the above misconduct may be
subject to disciplinary action, up to an including termination of employment.” (BlackwellMurray Dep., Ex. 12.) Moreover, the Bonding Policy provides that an employee who commits a
dishonest act—such as having documents notarized without the customer present—loses bond
coverage under PNC’s fidelity bond and must immediately cease working at PNC. (BlackwellMurray Dep., Ex. 17.)
As Defendant has met its burden of production in this case, the presumption of
discrimination now “drops out of the picture” and the burden shifts back to Plaintiff to establish a
genuine issue of material fact that Defendant’s proffered reasons are merely pretextual. In order
to establish that the defendant is liable for illegal employment discrimination, the plaintiff must
25
ultimately convince the trier of fact both that the reason was false and that a discriminatory
animus was the real reason for the adverse employment action at issue. Fuentes, 32 F.3d at 763.
Notably, “[l]iability cannot be established upon a jury’s mere disbelief of the defendant’s
proffered reasons for an adverse employment action, but rather upon the jury’s affirmative belief
of the plaintiff’s contention that the action was taken on the basis of an impermissible
discriminatory criterion.” Mitchell, 884 F. Supp. 2d at 370–71.
Plaintiff’s sole theory of pretext is that he was terminated despite “following the
instructions of his supervisor and the established practices of the East Bradford Branch.” (Pl.’s
Opp’n Summ. J. 8.) Plaintiff then simply argues that “a fact-finder could reasonabl[y] find that
each of Defendant’s legitimate reasons for termination were based upon practices that were
permitted by Plaintiff’s supervisors and that Caucasian employees were engaged in, but were not
sanctioned for. Alternatively, Plaintiff has demonstrated that Defendant’s discriminatory reason
was a motivating cause of the adverse employment action.” (Id. at 9.)
Again, Plaintiff’s arguments stand unsupported by the evidence. As set forth in detail
above, Plaintiff has failed to produce evidence either that similarly-situated Caucasian employees
engaged in similar conduct or that PNC management knew about the alleged conduct by these
employees and failed to sanction them. Moreover, to the extent Plaintiff argues that violations of
the Notary Policy were permitted and encouraged by PNC, his contention is unsupported and, in
some cases, belied by the evidence of record. Specifically, Plaintiff testified as follows:
Q.
A.
Q.
So you thought that it was okay then to get the document notarized eve
without the customer present so you wouldn’t get a loan error?
The told us the same thing. If we took the packet to another location, the
customers weren’t with us. We just went to another location and had the
notary of that branch notarize the documents.
Who told you at PNC that you could take the documents to another PNC
26
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
branch to get it notarized without the customer present?
Everyone at PNC told me that.
Who?
Judy told me that.
Judy Bell told you that?
Yes. Heather Teneglia told me that. Because I took documents to her branch
to have her notary notarize them for me. Chris DiBello, Matt Farnsworth, a
lot of people told me that.
When did Judy Bell tell you that you that you can take a document to get
notarized without the customer present?
Afer this whole situation with Lynsey. And then at that point once Kathryn
called the back office, that’s when she told me to cease and desist doing all
loan closings.
I want to know though, I thought you told me that Judy Bell told you that you
could take a document to get notarized without the customer present?
Yes.
When did she tell you that?
As soon as Lynsey was terminated. I believe Lynsey was terminated in late
May, early June of 2009.
And what about Lynsey’s termination would trigger Ms. Bell to tell you you
can take a document to get notarized without the customer present?
Because Lynsey was the only notary that I had in that office.
So Ms. Bell said to you that you could go without a customer and get a
document notarized?
Yeah. She told me to go over to the neighboring branch and have them—she
said have them notarize it or see if they can come here—either/or.
Did she specifically tell you, without the customer being present?
She said either take the documents to a neighboring branch or have them
come here. She said either/or.
But did she specifically tell you, and I’m talking about Ms. Bell, that you
could take the documents or have them come here without the customer
present to get it notarized?
Yes.
Those were her words, without the customer present?
Yes. Well, those weren’t her words, without the customer present. But she
said you can take the docs—she didn’t even mention customer. She said,
you can take the documents to a neighboring branch to have them
notarized. Customers were not even mentioned. She specifically said,
Christian, you can take the documents to a neighboring branch to have
them notarized by their notary.
27
(Blackwell-Murray Dep. 182:9–185:11 (emphasis added).)9 Such testimony does not indicate
any direction that Plaintiff have documents notarized without a customer present in direct
violation of the Notary Policy; rather, it reflects Plaintiff’s inference from Ms. Bell’s statement
that he could conduct notarizations without the customer. Plaintiff admits that Ms. Bell never
told him that he could violate the Notary Policy.
As to other individuals, Plaintiff goes into detail about only one other PNC
employee—Matthew Farnsworth—who allegedly told him to have documents notarized without
customers present. Aside from the fact that Plaintiff makes no showing that Farnsworth was his
supervisor or superior to whom he was obligated to listen, the context of Farnsworth’s statements
indicates that he actually cautioned Plaintiff that this was a “frowned upon” practice:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Did Matt Farnsworth notarize documents without the customer present?
He probably did because he was a branch manager before.
Did you ever see Matt Farnsworth notarize documents or have documents
notarized without the customer present?
I had conversations with him about it.
What did he tell you?
He said PNC frowns upon this. But they are really not going to bother you
because this is—you are doing something the customers wants so they really
don’t frown upon it.
Did Matt Farnsworth tell you that though that he would take documents to be
notarized without the customer present?
He was a notary so he would notarize them.
Without the customer present?
Yes.
He told you he did that?
He said a few times he did, yes.
Did he tell you whether anyone in management at PNC was aware that he
9
Defendant’s Reply Brief cites additional testimony wherein Plaintiff admits that neither
Bell nor any other supervisor authorized him to violate the Notary Policy or any other PNC
Policy. (Def.’s Reply Br. 3–4.) Notably, however, the additional pages cited by Defendant are
not included as an exhibit to any brief. Accordingly, the Court disregards any deposition
testimony cited in briefs but not provided as a submission to the Court.
28
A.
Q.
A.
was doing this?
He didn’t tell me. He didn’t go into all this. He just said that they
frowned—it’s frowned upon because you’re not supposed to. He said,
however, it’s industry standard. And they don’t really do anything about it.
Did he tell you if anybody knew about it to do anything about it?
No, he didn’t say.
(Id. at 178:11–179:8.) Indeed, the only reasonable inference from this testimony is that Plaintiff
knew that violations of the Notary Policy were not permitted, but believed that he could
potentially get away with it. Such an inference in no way supports Plaintiff’s assertion that he
was “instructed” to have documents notarized without the customer present in order to close
transactions.
In short, Plaintiff has set forth no basis on which a jury could find that Defendant’s
proffered legitimate, non-discriminatory reason for terminating him was actually pretextual for
racial discrimination. Aside from the fact that there is no factual premise on which to disbelieve
Defendant’s proffered reason, there is also no evidentiary basis on which a jury could rest an
affirmative belief that the termination was taken on the basis of an impermissible discriminatory
criterion. Accordingly, Plaintiff’s discrimination claims fails this portion of the McDonnell
Douglas analysis.
3.
Conclusion as to Discrimination Claim
Given the foregoing, the Court must grant Defendant’s Motion for Summary Judgment as
to Plaintiff’s Title VII and PHRA discrimination claims. As set forth in detail above, Plaintiff’s
prima facie case fails due to his inability to prove that similarly situated individuals were treated
more favorably than him or that his termination occurred under circumstances that give rise to an
inference of discrimination. Moreover, even if Plaintiff could succeed on his prima facie case, he
has failed to create any genuine issue of material fact on the question of whether Defendant’s
29
legitimate, non-discriminatory reason for his termination—i.e., his repeated violation of the
Notary Policy—was a mere pretext for discrimination. In sum, based on the evidence of record,
no reasonable jury could find that Plaintiff was discriminated against by Defendant.
Accordingly, judgment on these claims will be entered in favor of Defendant and against
Plaintiff.
B.
Wage Payment and Collection Law Claim
Defendant next seeks summary judgment on Plaintiff’s claim pursuant to the Wage
Payment and Collection Law (“WPCL”), 43 Pa.C.S. § 260.1 et seq. The WPCL requires
employers to pay a separated employee his or her “wages or compensation earned” at the time of
separation no later than the employer’s next regular payday. 43 Pa. Cons. Stat. Ann. § 260.5.
The WPCL defines wages as “all earnings of an employee, regardless of whether determined on
time, task, piece, commission or other method of calculation.” Id. § 260.2a. Wages also include
fringe benefits provided by an employer. Id. The WPCL confers onto employees the ability to
institute legal actions to collect wages payable to them by employers. Id. § 260.9a; Deron v. SG
Printing, Inc., No. Civ.A.11-1934, 2012 WL 1902577, at *5 (M.D. Pa. May 25, 2012).
“‘[A] prerequisite for relief under the WPCL is a contract between employee and
employer that sets forth their agreement on wages to be paid . . . . Relief under the WPCL is
implausible without [the] existence of a contract.’” Scott v. Bimbo Bakeries, USA, Inc., No.
Civ.A.10-3154, 2012 WL 645905, at *4 (E.D. Pa. Feb. 29, 2012) (quoting Lehman v. Legg
Mason, Inc., 532 F. Supp. 2d 726, 733 (M.D. Pa. 2007)). In other words, “to sustain [a] wagepayment claim[], [the plaintiff] must demonstrate that he was contractually entitled to
compensation and that he was not paid.” Divenuta v. Bilcare, Inc., No. Civ.A.09-3657, 2011 WL
30
1196703, at *9 (E.D. Pa. Mar. 30, 2011). “The contract between the parties governs in
determining whether specific wages are earned.” Scott, 2012 WL 645905, at *4 (quoting
Weldon v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990); Laborers Combined Funds v. Mattei,
518 A.2d 1296, 1298 (Pa. 1986)). Notably, “[t]he mere fact that certain compensation is not
payable until a future date is not necessarily fatal to a WPCL claim so long as the employee is
deemed to have ‘earned’ it during his employment.” Riseman v. Advanta Corp., 39 F. App’x
761, 765 (3d Cir. 2002).
Bonus payments are recoverable under the WPCL. See 43 Pa. Cons. Stat. § 260.2a;
Cappuccio v. Pfizer, Inc., No. Civ.A.07-549, 2007 WL 2593704, at *5 (E. D. Pa. Aug. 31, 2007).
The burden falls on Plaintiff, however, to prove that the bonus is “earned,” i.e. that the right to
the wage or bonus vested under the terms of employment. Stebok v. Am. Gen. Life & Acc. Ins.
Co., 715 F. Supp. 711, 713 (W.D. Pa. 1989), aff’d, 888 F.2d 1382 (1989). Where a bonus or
incentive requires that an employee be actually employed by the employer at the time the
payment comes due, the employee has not earned that bonus or incentive. See id.; Cappuccio,
2007 WL 2593704, at *5.
Plaintiff now contends that he is owed (1) incentive payments for the third quarter of the
2009 calendar year (July–September) and (2) an annual bonus payment for 2009. Plaintiff’s
claim to these payments fails in two respects. First, Plaintiff has not established that, based on
his performance, he had earned either of these bonuses. Both plans set forth performance goals
that a branch manager would have to reach in order to become eligible for a bonus. (BlackwellMurray Dep., Ex. 6.) Aside from Plaintiff’s unsupported statement that he met all of his
incentives, however, the record is devoid of any proof that Plaintiff actually reached any of these
31
goals.10
While Plaintiff now contends that Defendant has not produced any proof that he did not
meet this goals, thereby leaving a genuine issue of material fact on this issue, this argument
misunderstands Rule 56 standards. As explained above, although the moving party must
establish an absence of a genuine issue of material fact, it need not “support its motion with
affidavits or other similar materials negating the opponent’s claim.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). It can meet its burden by “pointing out . . . that there is an absence of
evidence to support the nonmoving party’s claims.” Id. at 325. Once the movant has carried its
initial burden, the opposing party “must do more than simply show that there is some
metaphysical doubt as to material facts.” Matsushita Elec., 475 U.S. at 586. “[T]he non-moving
party must rebut the motion with facts in the record and cannot rest solely on assertions made in
the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d
195, 201 (3d Cir. 2006). If the non-moving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Plaintiff, in this
case, bears the burden of proving his entitlement to the bonuses for purposes of his WPCL claim.
Therefore, his failure to come forward with any evidence establishing such entitlement—despite
having the benefit of discovery—is fatal to his claim.
Even assuming Plaintiff could prove that he met his incentive goals, his WPCL claim
10
Plaintiff’s cites to his deposition at pages 19–20 as support for his meeting incentive
goals, but does not provide these pages and fails to note that they are not included with
Defendant’s exhibits. (See Pl.’s Opp’n Summ. J. 10.) Nonetheless, the Court will assume for
purposes of this Motion that Plaintiff testified on these pages that he met his incentive goals.
32
cannot succeed because Plaintiff was not employed by Defendant at the time the claimed bonuses
came due. The contract in this case—the Third Year DeNovo for Growth Branch Mgmt.
Incentive Plan—provides as follows:
Incentive Award Payment Schedule
All quarterly incentive components are typically paid in the 2nd pay of the 2nd month
of the following quarter. Anticipated pay dates are published on the 2009 Incentive
Pay Dates schedule.
The Third Year Denovo Deposit Growth bonus incentive is typically calculated and
paid in the 2nd pay of the 2nd month following the end of the three year period.
...
Employment status
Employees must be employed by Retail Banking and have an “active” status on
Compass (payroll system) as of the payroll processing date, generally the Thursday
of the week prior to the incentive pay date, in order to receive an incentive award. .
. . Employees inactive as of the payroll processing date will not receive an incentive
payment.
(Blackwell-Murray Dep., Ex. 6 (emphasis in original).) Plaintiff contends that Defendant did not
provide any evidence of either (1) the start and end date of either the third year period for the
East Bradford Branch—for purposes of the Third Year DeNovo Deposit Growth bonus incentive;
or (2) the end date of the quarter—for purposes of the quarterly incentive components. This
argument, however, is undermined by Plaintiff’s own testimony. At his deposition, he expressly
testified that, at the time of his termination on September 21, 2009, the third quarter was not
going to end for another two to three days. (Blackwell-Murray Dep. 120:5–9.) He subsequently
reiterated his admission that he was not employed at the time that the quarter incentive would
have been paid. (Id. at 331:7–9.) He went on to concede that the yearly goal bonus was not paid
until the end of the year, i.e. the end of 2009, well after his termination (Id. at 120:11–13.) In
light of this uncontradicted evidence that Plaintiff did not have “active” status on the payroll
system at the time of the payroll processing dates for either of his claimed incentive payments,
33
and given the explicit proscription on incentive payments to individuals no longer employed by
PNC at the time the payments are processed, Plaintiff has failed to create an issue of fact as to his
entitlement to these incentive payments.
In sum, Plaintiff’s WPCL claim must be dismissed. First, Plaintiff has failed to meet his
burden of establishing a genuine issue of material fact as to whether he met his performance
goals in order to qualify for incentive payments. Moreover, Plaintiff has failed to rebut
Defendant’s evidence demonstrating that he was not employed at the time the incentive payments
came due, as required in order to qualify under the Plan. Accordingly, Defendant’s Motion for
Summary Judgment on this claim shall also be granted.
C.
Tortious Interference With Prospective Contractual Relations Claim
Finally, Defendant moves for summary judgment as to Plaintiff’s tortious interference
with prospective contractual relations claim. To prove tortious interference with an existing or
prospective contract under Pennsylvania law, a plaintiff must establish four elements: (1) the
existence of a contractual relationship or prospective contractual relationship between the
plaintiff and another party; (2) an intent on the part of the defendant to harm the plaintiff by
interfering with that contractual relationship; (3) the absence of privilege or justification on the
part of the defendant; and (4) the occasioning of actual damage as a result of defendant. BP
Envt’l Servs., Inc. v. Republic Servs., Inc.,
F. Supp. 2d
, 2013 WL 2182740, at *3 (E.D.
Pa. May 21, 2013). For a claim of tortious interference with prospective contracts, the plaintiff
must show “that it is reasonably probable that, but for the wrongful acts of the defendant, the
plaintiff would have had a contractual relationship with a third party.” Id. at *7.
Plaintiff’s sole argument in support of this claim is as follows:
34
In the instant case, Plaintiff was qualified to be a bank manager. He had more than
four (4) years experience in the banking industry. Blackwell-Murray Dep. at 18,
48–49, Ex. 1, Ex. 2. Plaintiff applied to over twenty (20) banks in the region after
his termination with Defendant. Blackwell 1–13. He was interviewed for several
positions. Id. In many of his interviews, his tenure with PNC or his relationship with
Bell were explicitly mentioned by the interviewer. Id. His application process
spanned more than two (2) years. Id. Plaintiff was not offered a position with any
of the banks that he applied to, despite his experience. Plaintiff’s experience in the
field, the closeness of relationship between regional banks, Plaintiff’s testimony of
the comments that were made to him during interviews and the amount of banks he
applied to over such a long period of time without securing a position create the
strong inference that Defendant intended to harm Plaintiff by contacting prospective
bank employers in the region. Therefore, Plaintiff has demonstrated that there is a
genuine issue of material fact as to whether he has met the elements of Tortious
Interference with Employment Relations.
(Pl.’s Opp’n Summ. J. 11.)
This argument fails to meet Plaintiff’ summary judgment burden as to any of the elements
of his claim. Aside from his own speculative testimony that he was qualified the jobs for which
he applied,11 Plaintiff has produced no evidence—such as affidavits or deposition testimony from
the prospective employers—to suggest the existence of any reasonably possible business
relationships.
Moreover, Plaintiff fails to create a genuine issue of material fact that Ms. Bell ever
actually interfered with prospective employment relationships. Indeed, Plaintiff admitted that he
does not know what, if anything, was ever said to any potential employer:
11
Specifically, Plaintiff testified as follows:
How do you know you didn’t get positions because of anything PNC did or
said?
A.
Because if you looked in her all the interviews I’ve been on I’ve been banned
from going to an open house. I had people—I get to the last stage, everything
has gone will with the interviews. They cancel the interviews. I’ve had
people, everything is going great. They say we got to do our background
reference check. The next thing I’m not getting any phone calls back.
(Blackwell-Murray Dep. 299:8–20.)
Q.
35
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
...
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
You put in here if you look at the last page, PNC has destroyed my
reputation throughout the tri-state area with the banking industry. Do you
know if anyone from PNC has commented to any of your prospective
employees or anyone in the banking industry about your employment and
your termination?
Yes.
Who?
Judy Bell.
Who has she talked with about your employment?
I’m not certain of the exact individual she spoke with.
How do you know she spoke with anyone about your employment?
Because I had a conversation with her after I was terminated. And she told
me that she did speak to some people about my employment at PNC.
Who did she tell you she spoke with?
She didn’t say.
When did she tell you she spoke with them?
She didn’t give me exact dates.
Has anyone told you that they’ve spoken with Judy Bell about your
employment at PNC?
No.
But you don’t know anyone that she’s spoken with?
Correct.
And no one has told you that they’ve spoken with Judy?
Correct.
How do you know that she violated the policy?
Because I had that conversation and she said she spoke to a few
prospective employers about me.
And you don’t know who those employers are?
No.
And you don’t know who she spoke with?
No.
How many times did she speak with them?
She didn’t say.
When did she speak with them?
She didn’t say.
When did you speak with Judy after you left PNC’s employment?
This was about I want to say in 2010. It was roughly around October of
2010 I had this conversation with her.
Did you call her on the telephone?
Yes.
Why did you call her?
Because I wanted to find out what was going on because I kept getting
denied over and over again for positions.
36
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
What did you say to Judy? Did you leave her a voice mail or did you
actually speak with her?
Both.
You called her cell phone?
Cell phone and her office phone.
What did you say to her?
I asked her, Has anybody contacted you about my employment with PNC?
What did she say?
She said yes.
What did she say she told them?
She didn’t
Who did she say contacted her?
She didn’t.
Did she tell you if she ever returned anyone’s phone call who tried to
contact her?
She didn’t go into detail about it.
So you have no idea what she said?
No.
And none of your prospective employers have told you that PNC has said
anything about your employment, correct?
No.
How do you know you didn’t get positions because of anything PNC did
or said?
Because if you looked in here all the interviews I’ve been on I’ve been
banned from going to an open house. I had people—I get to the last stage,
everything has gone well with the interviews. They cancel the interviews.
I’ve had people, everything is going great. They say we got to do our
background reference check. The next thing I’m not getting any phone
calls back.
How do you know it’s PNC and not Bank of America?
Because nothing happened at Bank of America.
Even though you sued them for discrimination?
I never sued them.
You didn’t sue—Bank of America you filed a charge of discrimination
with them?
That’s it, yes.
So you don’t know why these prospective employers aren’t hiring you.
You just think it’s PNC, correct?
And because I spoke with Judy. And I know she said she spoke to a few
prospective employers.
She told you she was contacted, correct?
Correct.
She didn’t tell you she spoke with them, correct?
Yes, she did. She said I spoke with a few people that contacted me.
37
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Okay. What did she tell you she said to them?
She didn’t say.
Did you ask?
Yes. She didn’t elaborate.
How long was this telephone conversation you had with Ms. Bell?
Roughly about five or ten minutes.
How many employers did she tell you contacted her?
She didn’t.
(Blackwell-Murray Dep. 294:15–301:14.) For all Plaintiff knows, Bell could have simply
confirmed that Plaintiff had worked with her or described his role at PNC. Nothing in the record
suggests that she made any negative comments about Plaintiff that hindered his ability to obtain
future employment.
Finally, although Plaintiff suggests that there is a “strong inference” that Defendant
intended to harm Plaintiff, he offers no evidence to that effect. Given that he does not even know
the who, what, where, and when of the alleged disparaging statements, Plaintiff is hard-pressed
to argue that there was an intent to interfere.
In light of the complete absence of evidence to establish any element of this claim, the
Court must grant Defendant’s Motion on this claim. As such, judgment shall be entered in favor
of Defendant and against Plaintiff.
IV.
CONCLUSION
In sum, the Court must grant Defendant’s Motion for Summary Judgment in its entirety.
With respect to Plaintiff’s claims for racial discrimination under Title VII and the PHRA,
Plaintiff has failed to create a genuine issue of material fact as to (1) whether his termination
occurred under any circumstances giving rise to a reasonable inference of discrimination or (2)
whether Defendant’s legitimate non-discriminatory reason for termination was pretextual. As to
his WPCL claim, Plaintiff has produced no evidence to suggest that he had earned any incentive
38
payments or that he was still qualified for such payments even after his termination. Finally,
with respect to his tortious interference claim, Plaintiff fails to show the existence of any
prospective contractual relationships or an intent to harm on the part of PNC. Given such
findings the Court must enter judgment on the entirety of the Complaint in favor of Defendant
and against Plaintiff.
An appropriate Order follows.
39
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