Garnett v. Bank of America

Filing 36

MEMORANDUM OPINION regarding motions for summary judgment (D.I. 26 and D.I. 29 ). Signed by Judge Richard G. Andrews on 3/21/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
URSALA A. GARNETT,
Plaintiff,

v.

Civ. No. 14-921-RGA

BANK OF AMERICA,
Defendant.

Ursala A. Garnett, Newark, Delaware. Pro Se Plaintiff.
James H. McMackin, Ill, Esquire, Allyson Britton DiRocco, Esquire, and Elena D.
Marcuss, Esquire. Morris James LLP, Wilmington, Delaware. Counsel for Defendant.

MEMORANDUM OPINION

March(t-1, 2017
Wilmington, Delaware

Plaintiff Ursala A. Garnett appears pro se and has been granted leave to
proceed in forma pauperis. She commenced this employment discrimination action
against Defendant Bank of America on July 14, 2014. (D.I. 2). The complaint alleges
employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e, et seq. The Court has jurisdiction pursuant to 28
U.S.C. § 1331. Defendant moves for summary judgment. (D.I. 26). Plaintiff opposes
and asks the Court to find in her favor. 1 (D.I. 29). Briefing on the matter has been
completed.

I.

LEGAL AND FACTUAL BACKGROUND
Garnett alleges employment discrimination by reason of race in the forms of

harassment, failure to promote, and retaliation that resulted in discipline and termination
of her employment. (D.I. 2). On December 10, 2007, Garnett was hired by Bank of
America as an Auditor II with its corporate audit team in Wilmington, Delaware. (D.I. 27
at Ex. 1 at p.18). In July 2011, Garnett was promoted to Senior Auditor I. (Id. at
pp.23-24). When Garnett moved to a new area within corporate audit in January 2012,
she began reporting to Catherine Kulp. (Id. at pp.24-25). Kulp reported to Carol Apel.

(Id. at p.26). Garnett testified that the audit job was "really not what [she] want[ed] to
do,'' and she told Kulp the job was "not really [her] thing." (Id. at p.92). Garnett testified
that the position was not what she wanted because of the stress involved and that she
"actually hated the job." (Id. at pp.92-93).

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Given Garnett's request, I will regard her filing as a cross-motion for summary
judgment. On October 21, 2014, Garnett submitted a sur-reply without leave of court.
(D.I. 33). It will be considered given her pro se status.

Kulp met with Garnett on August 2, 2012 for her mid-year performance review.

(Id. at Ex. 1 at p.30; Ex. 2 at 1f 4 ). Kulp gave Garnett overall ratings of "meets
expectations" in the two categories of performance ratings. (Id. at Ex. 1 at pp.69-7 4;
Ex. 2at1f 4). Garnett had received the same ratings in her 2011 year-end performance
review. (Id. at Ex. 2at1f 5). The review addressed areas that needed improvement
and concerns raised by Garnett's co-workers regarding Garnett's distracting humming
and singing out loud in the office. (Id. at Ex. 1 at pp.30-31, 74-76; Ex. 2at1l1f 4, 6).
Garnett's previous manager, Susan Young, had spoken to Garnett about the same
thing. (Id. at Ex. 1 at pp.31-32; Ex. 2 at 1f 6). Garnett told Kulp she thought a lot of the
things that were happening were based upon her race. (Id. at Ex. 1 at p.33; Ex. 2 at 1f
6).
On or about August 6, 2012, Garnett used the services of Bank of America's
Advice and Counsel, which was a group of human resources professionals available to
associates for consultation. (D.I. 27 at Ex. 1 at pp.48-51, 57-58; Ex. 1 at Dep. Ex. 1;
D.I. 33 at Ex. 9). Garnett called Advice and Counsel's phone center and stated that she
believed complaints about her singing were racially motivated. (D.I. 27 at Ex. 1 at
p.49). Advice and Counsel asked for the bases of Garnett's belief. She provided it with
a "List of Concerns," which claimed she was denied a promotion based upon
accusations that her humming disrupted the work environment; Garnett did not believe
the humming had anything to do with her overall performance. (D.I. 27 at Ex. 1 at
pp.48-51, 57-58; Ex. 1 at Dep. Ex. 1; D.I. 33 at Ex. 9). The "List of Concerns" speaks to
unfair treatment and "being singled out," but does not mention race. (D.I. 27 at Ex. 1 at
Dep. Ex. 1).

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Garnett also believed race was a factor when (1) she was not included on the list
of individuals moving with her team to another building, and (2) immediate action was
not taken after she complained of the theft of items from her desk. (Id. at Ex. 1 at
pp.49-50; Ex. 1 at Dep. Ex. 1 at mJ 4, 5). Lisa DiStefano coordinated the move. (Id. at
Ex. 1 at p.50). Garnett was approved to work from home and, at the time, was working
remotely. (Id. at Ex. 1 at pp. 40, 51 ). When Garnett discovered that her name was not
on the actual move list, she called DiStefano. (Id. at p.51 ). DiStefano told Garnett that
she did not realize that Garnett was not on the list. {Id.). Garnett's "List of Concerns"
explains that DiStefano's information was not accurate; when Garnett expressed her
concern, a "rush order'' was placed to have her assigned to an area. (D.I. 27 at Ex. 1 at
Dep. Ex 1 at ~ 4 ). Garnett complained that she was placed in a space that was not
comparable to those assigned to her teammates. (Id.).
Garnett testified that in preparation for the move to another building, she packed
up her things only to discover upon her return from vacation that some items were
stolen. (Id. at Ex. 1 at pp. 33-34). Garnett complained to DiStefano, but she took no
action. (D.I. 27 at Ex. 1 at Dep. Ex 1 at~ 5). Garnett's "List of Concerns" explains that
when another associate complained of stolen items, "all of a sudden" DiStefano
completed a report and contacted security. {Id.). Garnett was not reimbursed for her
stolen items, and testified that a white person "got their money back." (Id. at Ex. 1 at
pp. 36-38).
Garnett testified that she thought she deserved in mid-2012 to be promoted to
Senior Auditor II but, at the time of her deposition, she was not fully aware of that
position's job requirements. (Id. at Ex. 1 at p.60). Garnett did not know how the

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decision was made to promote an employee from Senior Auditor I to Senior Auditor II,
and assumed the decision was made by the manager and the audit director. (Id. at Ex.
1 at p.60). She believed that she should have been promoted based upon the level of
what she had performed, the additional tasks she accepted, and her coaching of other
senior auditors. (Id. at Ex. 1 at p.61 ).
According to Kulp, a Senior Auditor II is expected to perform excellent individual
audit work, work independently, and lead others performing audit work. (Id. at Ex. 2 at

1l 8).

Generally, Bank of America does not promote an associate from Senior Auditor I

to Senior Auditor II until the associate has been rated "exceeds expectations" in both
overall performance categories on their year-end performance review for at least a
year, if not two. (Id.). As of mid-2012, Kulp believed that Garnett's performance was
not at the level of a Senior Auditor II. (/d.).
On January 23, 2013, Kulp met with Garnett for her 2012 year-end performance
review. (Id. at Ex. 2 at 1f 9). Kulp rated Garnett's job performance as "meets
expectations" in both categories overall, and identified areas for Garnett to improve her
performance. (Id. at Ex. 1 at pp.96-98; Ex. 1 at Dep. Ex. 4; Ex. 2 at 1f 9). During the
review, Kulp addressed additional complaints that she had received about Garnett
singing and humming in the office and Garnett's interactions with her co-workers. (Id.
at Ex. 1 at pp.100-01; Ex. 2 at 1f 10). According to Kulp, Garnett became upset,
claimed that what was reported were lies, and indicated that she did not wish to discuss
the issues any further. (Id. at Ex. 1 at pp.101-03; Ex. 2 at 1f 10). Garnett told Kulp that
she believed there was a vendetta against her and a racial issue in the group, but,
according to Kulp, Garnett did not provide her with information that indicated race had
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anything to do with it. (Id. at Ex. 1 at p.102; Ex. 2

at~

10). Garnett told Kulp that she

was "done" with her management team and that she wanted a mediator present during
any further discussions between the two. (Id. at Ex. 1 at pp.103-06, 118; Ex. 2

at~

10).

On January 31, 2013, Kulp verbally warned Garnett about her workplace
behavior, including her behavior towards fellow employees and her behavior during her
performance review. (Id. at Ex. 1 at pp.124-28; Ex. 2

at~

11 ). Audit director Cathy

Rohrer participated in the meeting due to Garnett's request that someone else be
present for further discussions on the issue. (Id.). On or about February 6, 2013,
Garnett complained to Advice and Counsel about her 2012 year-end performance
review and the fact that she was not promoted. (Id. at Ex. 1 at pp.117-18, 130-31; Ex. 1
at Dep. Ex. 6).
During the first quarter of 2013, Garnett worked on an audit. (Id. at Ex. 1 at
pp.145-49; Ex. 1 at Dep. Ex. 11; Ex. 2 at ~ 12). After completion of the audit, auditor-incharge Cesar Perez evaluated Garnett's performance on the audit and rated her as
"does not meet expectations" in the area of testing and workpaper documentation. (Id.
at Ex. 1 at~ 12). Kulp first conferred with Advice and Counsel; then, on May 2, 2013,
she verbally warned Garnett about her job performance and the need to improve her
execution of the technology audit test programs and workpaper documentation. (Id. at
Ex. 2 at W 13-14). Following the meeting, Kulp continued to work with Garnett on an
action plan for improving her job performance with action items tied to the audit she
was then working on with auditor-in-charge Maureen Flynn. (Id. at Ex. 1 at pp.149-56;
Ex. 1 at Dep. Ex. 13; Ex. 2

at~

14). Throughout that audit, Kulp coached Garnett on

audit processes during their weekly one-on-one meetings. (Id. at Ex. 2 at ~ 14).

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According to Kulp, Garnett's performance on the audit with Flynn was not at an
acceptable level as Garnett continued to demonstrate a fundamental lack of
understanding of basic technology audit principles. (Id. at Ex. 2 at 1f 15). Garnett's
performance on the audit was rated "does not meet expectations" in both overall
performance categories. (Id. at Ex. 1 at pp.157-58; Ex. 2at1f 15; Ex. 2 at Ex. A). On
July 12, 2013, Garnett received a written warning from Kulp for Garnett's continued
failure to meet performance expectations. (Id. at Ex. 1 at pp.159-60; Ex. 1 at Dep. Ex.
15; Ex. 2 at 1f 16). Kulp put together another action plan at Garnett's request and gave
it to Garnett on July 17, 2013. (D.I. 33 at pp.36-37).
According to Kulp, she continued to work closely with Garnett to try to improve
Garnett's performance though one-on-one meetings and action plans, but Garnett's
audit performance did not improve and she was not meeting deadlines. (D.I. 27 at Ex.
2 at 1f 17). On August 8, 2013, Kulp conducted Garnett's mid-year performance review
and rated Garnett's performance as "does not meet expectations" in both the goals and
competencies categories overall. (Id. at Ex. 1 at pp.167-69; Ex. 1 at Dep. Ex. 18; Ex. 2
at 1f 18). Garnett did not agree that she was not performing well. (Id. at Ex. 2 at
1f 18). On August 20, 2013, Kulp met with Garnett and gave her a final written warning
regarding her job performance. (Id. at Ex. 1 at pp.170-72; Ex. 1 at Dep. Ex. 19; Ex. 2 at
1f 19). Audit director Rohrer was present and audit director Apel participated via
telephone. (Id.).
In August and September 2013, Garnett worked on a project under senior audit
manager Pamela Fischer. (Id. at Ex. 2 at 1f 20). According to Kulp, Garnett's work
reflected the same lack of understanding of basic audit responsibilities and skills and

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work product issues, including grammatical and spelling errors that Kulp had been
addressing with Garnett. (/d.). Garnett's work product did not reflect any effort or
desire to improve; after conferring with the Human Resources Manager, Audit
leadership, and Advice and Counsel, the decision was made to terminate Garnett's
employment. (Id. at Ex. 2 at 1f 21 ). On October 4, 2013, Kulp terminated Garnett's
employment with Bank of America. (Id.).
Garnett testified that Kulp never said anything that indicated that she harbored
any racially discriminatory animus against Garnett. (Id. at Ex. 1 at pp.119, 224).
Garnett described Kulp as verbally and emotionally abusive. (/d.).
On February 21, 2013, Garnett presented her discrimination complaint to the
Delaware Department of Labor ("DOOL") and, on March 5, 2013, a charge of
discrimination was filed with the Equal Employment Opportunity Commission ("EEOC")
alleging race discrimination and retaliation because she was denied a promotion to
Senior Auditor II in January 2013, not included in her team's move to a new location,
and her reports of theft were ignored. (Id. at Ex. 1 at p.136; Ex. 1 at Dep. Ex. 7).
Garnett was represented by counsel during at least some portion of the administrative
proceedings. (Id. at Ex. 1 at Dep. Ex. 9, third page; D.I. 33, Exh. 2)
Garnett testified that she is claiming that the failure to promote her to Senior
Auditor II was discriminatory, not retaliatory. (D.I. 27 at Ex. 1 at pp.260-61 ). She claims
that the verbal warnings, written warnings, action plans, disciplinary actions, and
termination were in retaliation for filing the first claim. (Id. at pp.260-62). Garnett
presented a second discrimination complaint to the DOOL on September 12, 2013, and
a charge of discrimination was filed with the EEOC on October 17, 2013 alleging

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retaliation when she was harassed, disciplined, and discharged. (Id. at Ex. 1 at pp.18082; Ex. 1 at Dep. Ex. 22). Garnett testified that Bank of America had no knowledge of
the second charge prior to her termination. (Id. at Ex. 1 at p.181 ).

II.

LEGAL STANDARDS

"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). A "material fact" is one that "could affect the
outcome" of the proceeding. See Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011 ). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 n.10 (1986). The court will "draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the evidence."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

If the moving party is able to demonstrate an absence of disputed material facts,
the nonmoving party then "must come forward with 'specific facts showing that there is
a genuine issue for trial."' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The mere existence of some evidence in support of the nonmoving party, however, will
not be sufficient for denial of a motion for summary judgment. Id. Rather, the
nonmoving party must present enough evidence to enable a jury to reasonably find for it
on that issue. Id. If the nonmoving party fails to make a sufficient showing on an
essential element of its case with respect to which it has the burden of proof, the
moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).

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With respect to summary judgment in a discrimination case, the Court's role is
"to determine whether, upon reviewing all the facts and inferences to be drawn
therefrom in the light most favorable to the plaintiff, there exists sufficient evidence to
create a genuine issue of material fact as to whether the employer intentionally
discriminated against the plaintiff." Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir.
1987).
Bank of America moves for summary judgment on the grounds that Garnett
cannot: (1) establish a prima facie case of race discrimination as to her failure to
promote, employment termination, or retaliation claims; and (2) prove that Bank of
America's legitimate, non-discriminatory reasons for its actions are a pretext for
discrimination or retaliation. Garnett argues that her claim speaks to promotion,
retaliation, harassment, and creating a hostile work environment. 2 (D.I. 29). She asks
the Court to find in her favor and award damages for discrimination and retaliation. (Id.)

Ill.

DISCUSSION

A.

Hostile Work Environment

Garnett contends harassment directed towards her resulted in a hostile work
environment. To make a prima facie case of hostile work environment, a plaintiff must
establish the following five elements: (1) "she suffered intentional discrimination
because of race; (2) the discrimination was pervasive and regular; (3) the discrimination

2

1n her response, Garnett also refers to religious discrimination, stating that her
religious beliefs were questioned. (D.I. 29 at p.14). The Court does not consider this
claim given that it is raised for the first time in Garnett's responsive brief. See generally
Bell v. City of Philadelphia, 275 F. App'x 157, 160 (3d Cir. 2008) (plaintiff may not
amend complaint through arguments in brief in opposition to a motion for summary
judgment).

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detrimentally affected [her]; (4) the discrimination would detrimentally affect a
reasonable person of the same race in [her] position;" and (5) there is a basis for
employer liability. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir.
1996). Not all workplace conduct that may be described as harassment rises to the
level of a hostile work environment. Clegg v. Falcon Plastics, Inc., 174 F. App'x 18, 25
(3d Cir. 2006).
"Workplace conduct is not measured in isolation; instead, whether an
environment is sufficiently hostile or abusive must be judged by looking at all the
circumstances, including the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance." Clark Cnty.
Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (internal quotation marks omitted).
"[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms and conditions of employment."
Id. at 271 (internal quotation marks omitted); see also Faragher v. Boca Raton, 524
U.S. 775, 788 (1998) (noting that the standard for judging hostility under Title VII must
be sufficiently demanding so that the statute does not become "a general civility code").
Rather, the plaintiff must show that she was subjected to continuous and repeated acts
of harassment. See Drinkwater v. Union Carbide Corp., 904 F.2d 853, 863 (3d Cir.
1990).
Garnett claims that she was subjected to a hostile work environment because:
(1) she was denied a promotion when her co-workers complained about her humming
and singing; (2) Kulp spoke to her in an insensitive manner; (3) her name was omitted
10

from the team member list when the team was moving to another building; and (4)
immediate action was not taken after she complained of the theft of items from her
desk.
Garnett testified that Kulp never said anything to her that was racially offensive
or that indicated Kulp harbored a racial animus against Garnett. Instead, Garnett found
Kulp verbally abusive. Construing this in the light most favorable to Garnett, the nonmoving party, and even if Kulp's conduct may have been inappropriate work behavior, it
is not indicative of race discrimination. See Oncale v. Sundowner Offshore Serv., Inc.,
523 U.S. 75, 81 (1998) (Title VII is not a "general civility code."); see a/so Barber v. CSX
Distrib. Serv., 68 F.3d 694, 702 (3d Cir. 1995) ("general complaint of unfair treatment
does not translate into a charge of illegal age discrimination").
Further, the evidence of record does not support a claim that race was a factor in
failing to include Garnett's name in the list of employees who were moved to another
building, or the failure to take immediate steps when Garnett complained that some of
her items had been stolen. Rather, it appears that Garnett's name was not on the
moving list due to an oversight, and steps were taken to remedy the matter once
Garnett raised the issue. With regard to the theft issue, no reasonable person could
find the issue particularly severe, particularly in light of the fact that again, steps were
taken to remedy the matter, albeit not in as timely a fashion as Garnett would have
liked.
Finally, Garnett relies upon her subjective beliefs to support her position that she
was subjected to a hostile work environment, when after her co-workers complained of
her humming and singing, she did not receive a promotion. Those subjective beliefs,
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however, are insufficient to create a genuine issue of material fact. See Fiorentini v.

William Penn Sch. Dist., 2016 WL 7338428 (3d Cir. Dec. 16, 2016).
After viewing the record in the light most favorable to Garnett, and considering
the totality of the circumstances, the Court concludes that no reasonable jury could find
that the claimed harassment was based on race or was sufficiently severe or pervasive
that it created a hostile working environment.
For the above reasons, the Court will deny Garnett's motion for summary
judgment and grant Bank of America's motion for summary judgment on the issue of a
hostile work environment.

8.

Race Discrimination

With regard to the race discrimination claim, Bank of America argues that
summary judgment is appropriate on the grounds that Garnett has failed to set forth a

prima facie case of race discrimination and, in the alternative, the claims fail based
upon legitimate non-discriminatory reasons.

1.

Applicable Law

Absent evidence of direct discriminatory intent, the Court applies the familiar
burden shifting framework articulated by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). 3 Under the McDonnell Douglas framework, the
plaintiff bears the initial burden of making a prima facie showing of discrimination. See
id. at 802.

3

"Direct evidence" is evidence sufficient to allow the jury to find that the
"decisionmakers placed substantial negative reliance on [race] in reaching their
decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J.,
concurring in the judgment).
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To establish a prima facie case of race discrimination, Garnett must prove that:
(1) she is a member of a protected class; (2) she is qualified for the position at issue;

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(3) she suffered an adverse action relative to that position; and (4) under circumstances

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that give rise to an inference of unlawful discrimination. Jones v. School Dist. of

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case is always whether the employer is treating some people less favorably than others

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Philadelphia, 198 F.3d 403, 410-11 (3d Cir. 1999). "The central focus of the prima facie

because their race." Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003).
If Garnett succeeds in establishing her prima facie case, the burden shifts to
Bank of America to proffer "legitimate non- discriminatory" reasons for its actions. See
Reeves, 530 U.S. at 142. If the defendant meets "its relatively light burden by
articulating a legitimate reason for the unfavorable employment decision," the burden of
production shifts back to the plaintiff to present evidence from which a reasonable
factfinder could infer that the employer's proffered reasons are pretextual. Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
To defeat summary judgment at the pretext stage, "the plaintiff must point to
some evidence, direct or circumstantial, from which a factfinder could reasonably either
(1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than not a motivating or determinative
cause of the employer's action." Id. at 764. To survive summary judgment, it is not
enough for a plaintiff to simply declare that the reasons proffered by the employer are
pretextual. See id. at 764-65. The plaintiff must point to evidence demonstrating "such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action[s] that a reasonable factfinder
13

could rationally find them unworthy of credence, and hence infer that the employer did
not act for the asserted nondiscriminatory reasons." Id. at 765 (internal citation,
alterations, and quotation marks omitted).

2.

Failure to Promote

Garnett claims that the failure to promote her to Senior Auditor II was
discriminatory.

a.

Prima Facie Case

Garnett has established that she is a member of a protected class and that she
suffered an adverse action. However, even when construing the facts in the light most
favorable to Garnett, she has failed to make a prima facie case for other two elements
needed. She has not shown that she was qualified for the position to which she sought
promotion. She has not shown circumstances suggesting an inference of unlawful
discrimination.
With regard to the "qualified" element, Garnett testified that she did not know the
qualifications for the Senior Auditor II position, how the decision for the promotion was
made, or who made the decision. She nonetheless believed that she should have been
promoted because of her performance, the additional tasks she accepted, and her
coaching of other senior auditors. It is uncontroverted, however, that a Senior Auditor I
is not promoted to a Senior Auditor II, until the Senior Auditor I has been rated "exceeds
expectations" in both of the two overall categories on year-end performance reviews for
at least a year. Garnett was rated as "meets expectations." There is no evidence that
she was ever rated as "exceeds expectations." Further, Garnett's supervisor did not
consider Garnett ready to perform the work expected of a Senior Auditor II.

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With regard to the "suggestive circumstances" element, one possibility is for
Plaintiff to compare her treatment to that of an employee outside her protected class.
To rely on this sort of comparison, she must show that she and the comparator
employee(s) are similarly situated in all relevant respects. See Houston v. Easton Area
Sch. Dist., 355 F. App'x 651, 654 (3d Cir. 2009). Whether a factor is relevant for
purposes of a similarly situated analysis must be determined by the context of each
case. Id. The relevant factors may include some of the above, in addition to evidence
that the employee "possessed analogous attributes, experience, education, and
qualifications relevant to the positions sought." Id. (quoting Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 618 (71h Cir. 2000)). Garnett is not required to show that she is
identical to the comparator in each relevant factor, "but [s]he must show substantial
similarity." Id. (citing Radue, 219 F.3d at 618). Accordingly, in order to establish an
appropriate class of similarly situated comparators, Garnett must identify employees
who share characteristics that are relevant to the facts of this case.
To support this prong, Garnett lists a number of discrimination cases and
provides articles involving Bank of America or Merrill Lynch. (D.I. 29 at pp.4, 17-21 ).
There is nothing in the record that indicates the list of cases involves comparators with
whom Garnett is substantial similar. Garnett names as a comparator Cynthia Harris, an
African American, who left the employ of Bank of America. (D.I. 29 at p.10; D.I. 31 at
Ex. 1 at pp.115-17). Harris held the position of Senior Auditor 11, while Garnett held the
position of Senior Auditor I. Yet Garnett argues that she and Harris experienced the
same treatment. (D.I. 20 at p. 10). Garnett testified that Harris "got singled out," but
she did not "know all the specifics." (D.I. 31 at Ex. 1 at p.116).
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Harris and the individuals listed in the cases and newspaper articles to whom
Garnett compares herself as having been treated more favorably are not similarly

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situated. With regard to Harris, she had a different job title and appears to have

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reported to Apel while Garnett reported to Kulp. In addition, Garnett could not provide

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any other specifics with regard to Harris as a comparator. Nor do the list of cases and

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newspaper articles provide relevant comparator evidence.
Given the absence of a showing that Garnett was qualified to be a Senior Auditor
II, and the paucity of comparator evidence, the Court finds that Garnett has failed to
meet her burden to establish a prima facie case of race discrimination.

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Pretext-Plus Analysis

In the alternative, I assume for the sake of argument that Garnett has
established a prima facie case of race discrimination in the failure to promote.
Nevertheless, even when construing the evidence in the light most favorable to Garnett,
she has provided no evidence from which a fact-finder could either disbelieve Bank of
America's articulated reasons, or believe that discriminatory reasons were more likely
than not the cause of the employment actions.
Garnett did not meet the required rating for promotion to Senior Auditor II. She
was rated as "meets expectations," rather than "exceeds expectations," as was
necessary for the promotion. The record evidence is undisputed that this was a
requirement for promotion. Further, Garnett's supervisor did not find Garnett ready to
perform the work expected of a Senior Auditor II, and this evidence is not disputed
either.

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Thus, I must grant summary judgment for the Bank of America on the "failure to
promote" claim of race discrimination.

3.

Termination

Garnett claims that her termination was discriminatory.

a.

Prima Facie Case

Garnett has established that she is a member of a protected class and that she
suffered an adverse action. As I note below, there is a disputed material fact as to
whether she was qualified for the position she held. However, even when construing
the facts in the light most favorable to Garnett, she has failed to make a prima facie
case for the other required element. She has not shown circumstances suggesting an
inference of unlawful discrimination.
Garnett disputes that she was not performing well at her job. Conversely,
Garnett received negative performance reviews from multiple Bank of America
employee, including two audit team leaders, Perez and Flynn, who do not appear to
have been part of her management structure. While the evidence in the record that
Garnett was performing satisfactorily appears to be essentially her self-evaluation, the
Court is not prepared to say at this point, given the necessity of construing the facts in
the light most favorable to Garnett as the non-moving party, that there is not a dispute
of material fact as to the quality of her work as a Senior Auditor I.
Garnett's "termination" claim falters in regard to the last element. That is, the
evidence of record does not give rise to an inference of race discrimination. One
possibility for establishing an inference of discrimination would consist of comparison
with others similarly situated. For someone to be similarly situated, relevant factors
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might include whether the comparators: "(1) had the same job description, (2) were
subject to the same standards, (3) were subject to the same supervisor, and (4) had
comparable experience, education, and other qualifications." Salas v. Wisconsin Dep't
of Corr., 493 F.3d 913, 923 (7th Cir. 2007). There is no evidence that would support an
analysis of any of these factors. There is no evidence of record of comparators that
were treated more favorably than Garnett under anything approaching similar
circumstances.
Given the absence of any circumstances suggesting that Garnett's termination
was the product of race discrimination, the Court concludes that Garnett has failed to
meet her burden to establish a prima facie case of race discrimination.

b.

Pretext-Plus Analysis

In the alternative, I assume for the sake of argument that Garnett has
established a prima facie case of race discrimination in her termination. Nevertheless,
even when construing the evidence in the light most favorable to Garnett, she has
provided no evidence from which a fact-finder could either disbelieve Bank of America's
articulated reasons, or believe that discriminatory reasons were more likely than not the
cause of the employment actions.
The record evidence is that Garnett received multiple warnings about her job
performance. She was given opportunities to improve her job performance, that
included weekly coaching meetings and action plans, yet her performance did not
improve. The record reflects that in addition to Kulp, who assessed Garnett's job
performance as "does not meet expectations," "auditor-in-charge" Perez and "auditor-incharge" Flynn also found Garnett's performance lacking. Garnett's employment was

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ultimately terminated after Kulp concluded that Garnett's work product did not reflect
the effort or desire to improve.
Although Garnett believes that she was performing well, Garnett has failed to
show that Bank of America's evidence of her performance deficiencies constitutes a
pretext for discrimination. See Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991)
(The employee's "view of [her] performance is not at issue; what matters is the
perception of the decision maker. . . . The fact that an employee disagrees with an
employer's evaluation of [her] does not prove pretext."), overruled in part on other
grounds by St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Garnett may not rely

upon her subjective beliefs to support her position that she was subjected to race
discrimination when she was terminated.
Nothing before the Court contradicts Bank of America's proffered reasons for the
actions it took. Nor are its proffered reasons for its actions weak, incoherent,
implausible, or so inconsistent that a reasonable factfinder could rationally find them
unworthy of credence. See Sarullo v. United States Postal Serv., 352 F.3d 789, 800
(3d Cir. 2003). As there is no genuine dispute on the dispositive legal issue of whether
Bank of America had discriminatory motives, the Court will grant Bank of America's
motion for summary judgment and will deny Garnett's motion for summary judgment as
to the issue of her termination constituting employment discrimination by reason of
race.

C.

Retaliation

To establish a prima facie claim of unlawful retaliation, Garnett is required to
show that: "(1) she engaged in a [protected activity]; (2) [Bank of America] took an
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adverse employment action against her; and (3) there was a causal connection
between her participation in the protected activity and the adverse employment action."

Moore v. City of Phi/a., 461F.3d331, 340-41 (3d Cir. 2006). Garnett "must show that a
reasonable employee would have found the challenged action materially adverse,

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which in this context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). The Court examines
the challenged conduct "from the perspective of a reasonable person in the plaintiff's
position, considering 'all the circumstances."' Id. at 71.
With respect to the causation prong, the Court considers whether a reasonable
jury could link the employer's conduct to retaliatory animus. See Jensen v. Potter, 435
F.3d 444, 449 n.2 (3d Cir. 2006) (explaining that "[t]he ultimate question in any
retaliation case is an intent to retaliate vel non"). In assessing this, the Court considers
the "temporal proximity" between Garnett's protected activity and Bank of America's
allegedly retaliatory response, and "the existence of a pattern of antagonism in the
intervening period." Id. at 450. "The cases that accept mere temporal proximity
between an employer's knowledge of protected activity and an adverse employment
action as sufficient evidence of causality to establish a prima facie case uniformly hold
that the temporal proximity must be very close." Clark Cnty. Sch. Dist., 532 U.S. at
273-7 4 (citing the insufficient three month period of Richmond v. ONEOK, Inc., 120
F.3d 205, 209 (10th Cir. 1997)); see also Williams v. Philadelphia Haus. Auth. Police

Dep't, 380 F.3d 751, 759-60 (3d Cir. 2004) (temporal proximity of two months between
protected activity and an adverse employment action was not unduly suggestive).

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If a prima facie case is established, the burden of production shifts to the
employer to present a legitimate, non-discriminatory reason for its actions. Daniels v.
School Dist. of Phi/a., 776 F. 3d 181, 193 (3d Cir. 2015). If such a reason is offered,

the burden shifts back to the plaintiff to demonstrate that the reason was merely pretext
"and that retaliation was the real reason for the adverse employment action." Id.
Although the burden of production shifts, "the plaintiff has the ultimate burden of
persuasion at all times." Id.
Garnett engaged in protected activity and Bank of America took adverse
employment actions against her in the form of verbal and written warnings and,
ultimately, the termination of her employment. The record reflects that Garnett
engaged in protected activity when she internally complained of race discrimination in
August 2012, again complained internally in early February 2013, presented a
discrimination complaint to the DOOL in mid-February 2013, and filed a charge of
discrimination in early March 2013. 4 Garnett does not claim that the failure to promote
her to Senior Auditor II was retaliatory. She testified that the verbal and written
warnings, action plans, disciplinary actions, and termination all were in retaliation after
she began complaining of discrimination.
Turning to the issue of a causal connection between the protected activity and
the adverse action taken, the record reflects that Garnett verbally complained of race

4

Garnett presented a second discrimination complaint to the DOOL on
September 12, 2013, and a charge of discrimination was filed with the EEOC on
October 17, 2013. Garnett does not base her retaliation claim upon the filing of the
second charge, as the Bank of America had no knowledge of the second charge prior
to her termination. (D.I. 27 at Ex. 1 at p.181 ).
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discrimination in early August 2012 and received a year-end evaluation that she did not
agree with on January 23, 2013, and a verbal warning regarding her workplace
behavior on January 31, 2013, both five months following her initial August 2012
complaint. Garnett received another verbal warning on May 2, 2013, approximately two
months after she filed her charge of discrimination with the EEOC on March 5, 2013.
Garnett then received a written warning on July 12, 2013, some five months after the
March 5, 2013 charge of discrimination, followed by a mid-year performance review in
early August with which Garnett did not agree. Garnett received a final written warning
on August 20, 2013, and her employment was terminated on October 4, 2013.
Here, even when construing these facts in the light most favorable to Garnett,
she has failed to set forth a prima facie case of retaliation, particularly given the fact
that the temporal proximity of Garnett's complaints to the acts of Bank of America are
not so close as to be unduly suggestive. Nor has Garnett presented evidence
suggestive of racial animus by Bank of America or its managers.
In the alternative, even had Garnett established a prima facie case of retaliation,
the evidence of record does not support a finding that Bank of America's legitimate,
non-discriminatory reasons for its adverse actions were pretext for retaliation. Bank of
America proffered legitimate, non-retaliatory reasons for the actions it took. Garnett
received multiple warnings, both verbal and written, regarding her job performance and
what was expected from her to meet performance expectations in her position as
Senior Auditor I. Care was taken to work with Garnett to improve her performance,
including coaching Garnett during weekly one-on-one meetings. Garnett was warned of
the consequences should her performance fail to improve, yet she failed to improve
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and, ultimately, her employment was terminated. Bank of America's proffered reasons
for taking the employment actions it did are not weak, incoherent, implausible, or so
inconsistent that a reasonable factfinder could rationally find it unworthy of credence.
See Sarullo v. United States Postal Service, 352 F.3d 789, 800 (3d Cir. 2003).

The Court finds that no reasonable jury could find for Garnett and, therefore, the
Court will grant Bank of America's motion and will deny Garnett's motion for summary
judgment on the retaliation issue.
IV.

CONCLUSION

For the above reasons, the Court will grant Defendant's motion for summary
judgment (D.I. 26) and will deny Plaintiffs motion for summary judgment (D.I. 29). A
separate Order consistent with this Memorandum Opinion will be issued.

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