Howard v. PNC Bank, N.A.

Filing 58

MEMORANDUM OPINION & ORDER: It is ORDERED as follows: 1. Defendant PNC Bank, N.A.'s 33 MOTION for Summary Judgment is GRANTED; 2. Defendant PNC Bank, N.A.'s 50 MOTION for Protective Order is DENIED, as moot; 3. Defendant PNC Bank N.A.'s 51 MOTION to Continue the Trial is DENIED, as moot. Signed by Judge Danny C. Reeves on 5/2/2019.(KM)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
)
)
)
)
)
)
)
)
)

TERESA M. HOWARD,
Plaintiff,
V.
PNC BANK, N.A.,
Defendant.
***

***

***

Civil Action No. 5: 18-364-DCR

MEMORANDUM OPINION
AND ORDER

***

Defendant PNC Bank, N.A. (PNC”) has filed a motion for summary judgment
regarding Plaintiff Teresa Howard’s claims of discrimination. [Record No. 33] Howard asserts
that she was terminated by PNC because of her age, race and gender. [Record No. 1] She
argues that she can demonstrate a prima facie case of discrimination and that there are genuine
issues of material fact regarding whether the reason provided by PNC for her termination was
pretextual. [Record No. 43] But after reviewing the arguments and materials submitted in
connection with PNC’s motion, the Court concludes that Howard has not offered sufficient
evidence to demonstrate a prima facie case of discrimination or to support her claim that the
legitimate, nondiscriminatory reasons for termination were pretextual.
I.
Howard worked at Commerce National Bank (a predecessor of PNC) and PNC from
1990 to 2016. [Record No. 34-1, p. 7] She was transferred to PNC’s Winchester Branch to
its Hamburg in 2014 where she continued to work as a teller. [Record No. 34-1, pp. 7-11]
Howard interviewed with the Hamburg branch manager, Nancy Lee Porter, and the assistant
-1-

manager. [Record No. 34-1, p. 15] She started work at the Hamburg branch on August 11,
2014. [Record No. 34-2, p. 2] Howard alleges that Porter made comments regarding her
retirement and vacation days while she worked at the Hamburg branch. [Record No. 34-1, p.
25]
Howard cashed checks and accepted over-the-counter business deposits as well as
personal deposits in her capacity as a teller. [Record No. 34-1, pp. 19-20] Over-the-counter
business deposits require that a customer present a deposit bag to the teller and initial the overthe-counter deposit log, indicating how many bags were presented. [Record No. 34-1, p. 33]
The teller then initials the log twice – once indicating how many bags were presented and once
after the deposit has been processed. [Record No. 34-1, p. 33] There are separate columns for
the customer’s and teller’s initials. [See, e.g., Record No. 39-2, p. 3.]
PNC’s Code of Business Ethics and Conduct prohibits employees from committing
dishonest acts and falsifying business records. [Record Nos. 34-7, 34-8] Further, the bank has
a fidelity bonding policy requiring that employees be bonded to work for the company.
[Record No. 34-10] If an employee commits a dishonest act, the individual is no longer bonded
and can no longer work for PNC.
Howard was working on May 24, 2016, when a customer entered the branch to make
an over-the-counter business deposit. [Record No. 34-1, p. 43] Howard processed the deposit,
but did not realize the customer failed to initial the log. [Record No. 34-1, pp. 43-44] Later,
after discovering that the customer has not initialed the log, Howard placed her own initials in
the box designated for the customer’s. [Record No. 34-1, p. 42] Another teller, Rebecca Hirz,
noticed that Howard had initialed the log improperly in place of the customer. Hirz reported

-2-

the incident to assistant branch manager, Emily Wilhoit, who then reported the matter to the
employee relations information center (“ERIC”). [Record No. 39-4]
David Snow, a senior employee relations investigator for PNC, was assigned to
investigate the incident. [Record No. 39-4] He examined the deposit log, reviewed the video
recording of the deposit, interviewed the plaintiff and Hirz, and consulted a prior log to
compare initials. Snow states that when he first interviewed Howard, she explained that she
wrote the customer’s initials on the log, but in a subsequent interview she stated that she wrote
her own initials as a reminder to have the customer verify the deposit. [Record No. 39-4] The
customer returned on June 4, 2016, but Howard did not ask the customer to correct the notation
on the previous deposit log. Based on the foregoing, Snow concluded that the plaintiff violated
PNC’s Code of Ethics.
Snow recommended that PNC terminate Howard’s employment because: (i) she
initialed the log in the area designated for the customer’s initials; (ii) she did not ask for
guidance when she realized the customer had not initialed the log; and (iii) Snow believed that
Howard was being deceptive. [Record No. 43-1, p. 76] Snow asserted that Howard did not
tell anyone about the irregularity and had shifting stories when asked about initialing the log.
Porter asked Howard to meet in her office on June 21, 2016. During this meeting, Snow
explained that Howard was being terminated. [Record No. 34-1, p. 51]
Howard filed a charge of discrimination with the EEOC on July 19, 2016, claiming
discrimination based on age, race, and gender. [Record No. 34-13] Howard explained in her
EEOC charge that she did not falsify any record, and that she merely printed her initials in the
upper corner of the customer’s initial box. [Record No. 34-13] She also alleged that a white,
male teller was treated more favorably because he was investigated for a falsified over-the-3-

counter log, but only received a written warning for his violation. [Record No. 34-13] Howard
filed suit in Fayette Circuit Court on April 10, 2018, alleging discrimination based on race,
gender and age in violation of the Kentucky Civil Rights Act. [Record No. 1] PNC removed
the matter to this Court on May 21, 2018.
II.
Summary judgment is appropriate if there are no genuine disputes regarding any
material facts and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Chao v. Hall Holding Co., 285
F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine” unless a
reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The determination concerning material facts concerns
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S.
at 251-52; see Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008).
Once the moving party has met its burden of production, “its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.” Keeneland
Ass’n, Inc. v. Earnes, 830 F. Supp. 974, 984 (E.D. Ky. 1993) (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving party cannot rely on
the assertions in its pleadings. Instead, she must come forward with probative evidence to
support her claims. Celotex, 477 U.S. at 324. In deciding whether to grant summary judgment,
the Court views all the facts and inferences drawn from the evidence in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 58.

-4-

III.
As noted, Howard claims that she was terminated based on her age, race and gender.
Kentucky Revised Statute 344.040 states “[i]t is an unlawful practice for an employer . . . to
discharge any individual . . . because of the individual’s race, color, . . . sex, [or] age forty (40)
and over . . .” The Kentucky Civil Rights Act (“KCRA”) is interpreted consistent with both
the Age Discrimination in Employment Act (“ADEA”) and Title VII. See Allen v. Highlands
Hosp. Corp., 545 F.3d 387, 393 (6th Cir. 2008) (“Claims brought under the KCRA are
analyzed in the same manner as ADEA claims.”) (internal citations and quotations omitted);
Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000) (“Ky. Rev. St. Chapter 344
mirrors Title VII of the Civil Rights Act of 1964”). It is also noteworthy that claims of
discrimination may be proven by direct or indirect evidence. Mitchell v. Vanderbilt Univ., 389
F.3d 177, 181 (6th Cir. 2004) (claiming age discrimination in violation of ADEA); Romans v.
Mich. Dep’t of Human Servs., 668 F.3d 826, 835 (6th Cir. 2012) (claiming race discrimination
in violation of Title VII); Bartlett v. Gates, 421 F. App’x 485, 487 (6th Cir. 2010) (claiming
sex discrimination in violation of Title VII).
Howard appears to concede that she does not have direct evidence of discrimination.
Thus, the Court examines whether the plaintiff has offered indirect evidence under the
McDonnell Douglas burden-shifting framework. 411 U.S. 792, 802 (1973). To establish a
prima facie case under McDonell Douglas, a plaintiff must show that she: (i) is a member of
the protected class, (ii) was subject to an adverse employment action, (iii) was qualified for
the position; and (iv) was treated differently than other similarly-situated employees outside
the protected class.

Mitchell, 389 F.3d at 181 (applying McDonnell Douglas in age

discrimination action); Romans, 668 F.3d at 835 (applying McDonnell Douglas in a Title VII
-5-

action). If Howard demonstrates a prima facie case, the burden shifts to PNC to establish a
nondiscriminatory reason for the termination. Harris v. Metro. Gov. of Nashville & Davidson
Cnty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010). And if PNC provides a nondiscriminatory
reason for the adverse employment action, the burden shifts back to Howard to demonstrate
pretext. Id.
A.

Howard does not present sufficient evidence to establish a prima facie case
of discrimination.

Howard argues that she is a member of a protected class, that she: (i) was qualified for
her position; (ii) adverse employment action was taken against her; (iii) circumstances suggest
a discriminatory motive because of different treatment given to a similarly-situated employee.
Regarding the third assertion, Howard provides information about other individuals who were
investigated for mishandling over-the-counter financial deposits. And she compares her
situation specifically to Wesley Bratcher, a younger white male, who was investigated for an
over-the-counter deposit infraction, but only given a warning for the violation.
Howard is a member of a protected class and can demonstrate adverse employment
action. PNC, however, takes issue with the assertion that Howard was qualified for the
position and it argues that she cannot show that a similarly-situated individual was treated
more favorably.
i.

Howard has presented sufficient evidence to demonstrate that she was
qualified for the teller position.

In determining whether a plaintiff is qualified for a position, she “need only show that
she satisfied an employer’s ‘objective’ qualifications.” Upshaw v. Ford Motor Co., 576 F.3d
576, 585 (6th Cir. 2009). As the Sixth Circuit has noted,

-6-

[t]he prima facie burden of showing that a plaintiff is qualified can therefore be
met by presenting credible evidence that his or her qualifications are at least
equivalent to the minimum objective criteria required for employment in the
relevant field. Although the specific qualifications will vary depending on the
job in question, the inquiry should focus on criteria such as the plaintiff’s
education, experience in the relevant industry, and demonstrated possession of
the required general skills.
Wexler v. White’s Fine Furniture, Inc, 317 F.3d 564, 575-76 (6th Cir. 2003).
PNC asserts that Howard is no longer qualified for the job because she cannot meet the
fidelity bonding policy required for all of its employees. It explains that dishonest acts
terminate bond coverage. [Record No. 34-9] The fidelity bonding policy requires that all PNC
employees be bonded while working for the company, and if PNC reasonably believes that an
employee committed a dishonest act, then the employee’s bond coverage is suspended.
[Record No. 34-9] It argues that by improperly initialing a deposit log and by failing to take
steps to remedy the situation, Howard violated the bonding policy and became unqualified to
work for the bank.
Conversely, Howard argues that she is objectively qualified for the position of teller at
the bank and that PNC does not challenge her objective qualifications. She relies on the
holding in Wexler v. White’s Fine Furniture, Inc., in support of her argument that PNC injected
its purported nondiscriminatory reason in claiming that she was not qualified for the teller
position. 317 F.3d at 574. As the court in Wexler explained, “a court may not consider the
employer’s alleged nondiscriminatory reason for taking adverse employment action when
analyzing the prima facie case.” Id. at 574.
The defendant in Blackwell-Murray v. PNC Bank argued that, by admitting to violating
the notary policy at PNC, the plaintiff was no longer covered under the bank’s fidelity bond
policy and was no longer qualified to work at the bank. 963 F. Supp. 2d 448, 463 (E.D. Pa.
-7-

2013). The court concluded that, while the argument was factually correct, it was not proper
matter to consider as an element of a prima facie case. Id.; see also Frank v. PNC Fin. Servs.
Group, 2013 US. Dist. LEXIS 115276 (W.D. Pa. Aug. 15, 2013) (explaining that the plaintiff
was qualified for the position of teller because of his years of experience and was regarded as
a competent employee, even though he had violated PNC’s Code of Ethics by engaging in
forced balancing); Eboda v. PNC Bank, N.A., 2018 U.S. Dist. LEXIS 159470 *1, *15, *20
(E.D. Pa. Sept. 18, 2018) (finding that she qualified for the position even though she had
violated PNC’s Code of Ethics making her no longer employable under the bank’s fidelity
bonding policy).
Based on her years of experience as a teller at PNC and its predecessor bank and her
performance evaluation, Howard has set forth sufficient evidence that she is qualified for the
position of bank teller. [Record No. 43-4] Thus, she has established the third element of her
prima facie case.
ii.

Howard cannot establish the fourth element of a prima facie case.

Howard claims that she was treated differently than Wesley Bratcher. [Record No. 42,
p. 15] Thus, she must show that she and Bratcher were similarly-situated in all relevant aspects
to establish the fourth element of a prima facie case. Mitchell v. Toledo Hosp., 964 F.2d 577,
583 (6th Cir. 1992); Tennial v. UPS, 840 F.3d 292, 304 (6th Cir. 2016). “[T]o be deemed
‘similarly-situated,’ the individuals with whom the plaintiff seeks to compare his/her treatment
must have dealt with the same supervisor, have been subject to the same standards and have
engaged in the same conduct without such differentiating or mitigating circumstances that
would distinguish their conduct or the employer’s treatment of them for it.” Mitchell, 964 F.2d
at 583 (citations omitted).
-8-

Howard presents evidence that she and Bratcher were similarly-situated in some
relevant respects, but not all. First, Howard and Bratcher were employed in the same capacity.
And both incidents: (i) involved a deposit log for an over-the-counter deposit; (ii) involved the
same policies and procedures; (iii) were investigated by David Snow; and (iv) were subject to
PNC’s Code of Ethics. [Record No. 43, p. 15] Howard asserts Bratcher was treated more
favorably because he was issued only a written warning, whereas she was terminated. [Record
No. 39-7, p. 2] But Bratcher and Howard did not have the same supervisor. [Compare Record
No. 39-7, with Record No. 39-4.] As a result, Howard cannot show that they were similarlysituated in all relevant aspects. But even assuming Howard could meet her prima facie case,
she has not presented sufficient evidence to demonstrate that the legitimate, nondiscriminatory
reason for her termination was pretextual.
B.

PNC Bank presented a legitimate, nondiscriminatory reason for
terminating Howard.

PNC Bank asserts that it had a legitimate, nondiscriminatory reason for terminating
Howard. It argues that she violated PNC Bank policies and was terminated because of this
infraction. Howard agrees that PNC Bank has met its burden of producing a nondiscriminatory
reason for her termination. [Record No. 43, p. 15] Thus, the burden shifts back to Howard.
C.

Howard has not presented sufficient evidence to establish that the reason
for her termination was pretextual.

There is no genuine issue of material fact regarding pretext. Howard has not produced
evidence from which a jury could reasonably doubt PNC Bank’s explanation for terminating
her. “To show pretext at the summary judgment stage, ‘the plaintiff is required to show by a
preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that
the proffered reasons did not actually motivate [her] discharge, or (3) that they were
-9-

insufficient to motivate discharge.’” Carter v. Toyota Tsusho Am., Inc., 529 F. App’x 601,
610 (6th Cir. 2013) (quoting Manzer, 29 F.3d 1078, 1084 (6th Cir. 1994), abrogated on other
grounds by Gross v. FBL Financial Servs., 557 U.S. 167 (2009), as recognized in Geiger v.
Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009)).

Howard must demonstrate that the

presumptively valid reason for her termination was a cover-up for a discriminatory decision.
McDonald v. Union Camp. Corp., 898 F.2d 1155, 1160 (6th Cir. 1990) (quoting McDonnell
Douglas, 411 U.S. at 805). This requires Howard to produce some evidence from which a
jury could reasonably reject the defendant’s reason for terminating her employment. Chen v.
Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).
“To prove that an employer’s explanation had no basis in fact, . . . the plaintiff must
present evidence that the proffered bases for discharge never happened.” Smith v. Hinkle Mfg.,
Inc., 36 F. App’x 825, 829 (6th Cir. 2002); see also Manzer, 29 F.3d at 1084. But here, the
proffered basis for discharge did happen. Howard admits that she initialed the deposit log in
the area reserved for the customer. [Record Nos. 39-3] The investigator concluded that
Howard had violated PNC’s Code of Ethics and recommended termination. [Record No. 394]

And Howard was then terminated because she violated the bank’s Code of Ethics by

falsifying the deposit log. [Record No. 39-4] Howard does not present any evidence to dispute
that she initialed the log improperly or that her actions were not in violation of the bank’s
policies.
Next, Howard has not produced evidence sufficient to show that the proffered reason
did not actually motivate the discharge. To establish pretext under this scenerio, Howard must
“put forth evidence that the employer did not ‘honestly believe’ in the proffered nondiscriminatory reason for its adverse employment action.” Braithwaite v. Timken Co., 258
- 10 -

F.3d 488, 494 (6th Cir. 2001). Thus, the “key inquiry is whether the employer made a
reasonably informed and considered decision before taking the complained-of-action.” Tingle
v. Arbors at Hilliard, 692 F.3d 523, 531 (6th Cir. 2001) (quoting Michael v. Caterpillar Fin.
Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007)).
Howard does not produce sufficient evidence to dispute Snow’s belief that she
committed a violation of PNC’s Code of Ethics.

Snow conducted an investigation by

interviewing witnesses, reviewing relevant documents, and observing the video recording of
the deposit before concluding that Howard had violated PNC Bank’s policies by intentionally
initialing the log in the area reserved for the customer and by failing to advise anyone regarding
the incident. Snow also concluded that Howard acted deceptively regarding the matter.
[Record Nos. 39-4; 39-3, p. 3; 43-1]. Based on this investigation, the employer made a
reasonably informed decision before terminating Howard’s employment.
But Howard argues that Porter’s role in terminating her renders material her (Porter’s)
“repeated inquiries of Howard’s retirement plan.” [Record No. 43, p. 19] Discriminatory
remarks can serve as probative evidence of pretext. Phelps v. Yale Sec., Inc., 986 F.2d 1020
(6th Cir. 1993) (“age-related comments referring directly to the worker may support an
inference of age discrimination.”). However, “isolated or ambiguous comments are too
abstract, in addition to being irrelevant and prejudicial, to support a finding of age
discrimination.” Id. (finding statements made about one’s birthday was too ambiguous to
establish the necessary inference of age discrimination) (internal citations and quotations
omitted).
Howard concedes in her deposition that Porter and Snow never made comments about
her race or gender, and that only Porter commented about Howard’s plans for retirement and
- 11 -

vacation days. [Record No. 43-2, pp. 59-65] Porter’s isolated comment (“[w]hy don’t you
just go ahead and retire,”) and statements about putting in leave requests are in the context of
taking time off for vacation. [Record No. 43-2, p. 60] Such isolated and ambiguous references
do not support a finding of age discrimination. Further, the fact that Porter was the person
who hired Howard cuts against her argument. See Garrett v. Sw. Med. Clinic, 61 F. App’x
351, 357 (6th Cir. 2015) (explaining that when the same actor hired and fired an individual can
weaken a claim of discrimination).
Howard also asserts that the shifting discussion of who fired her adds to pretext.
However, the evidence illustrates that Snow primarily investigated the incident giving rise to
Howard’s discharge and spoke to his manager (Laurie Collins), the regional manager (Diane
Richert), and Nancy Porter throughout the process. After conducting the investigation Snow
was the person who recommended termination. [Record No. 43-1, p. 73-77] Porter was
present when Snow explained the decision to terminate Howard. [Record No. 39-4, p. 7]
Slight inconsistencies in explaining who decided to terminate Howard does not undercut the
explanation that she was terminated because she violated the bank’s Code of Ethics by
improperly initialing the deposit log and then failing to report the incident.
Next, Howard asserts that her long and good employment record would contribute to
the jury’s pretext finding. However, Howard affirmed in her deposition that she had previously
been given a written warning and was previously placed on probation. [Record No. 43-2, p.
8-9] She also had been given a verbal warning for a buy/sell difference and a written warning
stating that the plaintiff “required immediate and sustained improvement,” while working at
the Hamburg branch. [Record No. 43-2, p. 18] Further, her employment record does not

- 12 -

undermine the fact that she improperly initialed the deposit log and did not advise anyone
about the improper action.
Next, Howard cannot offer sufficient evidence that the reasons for her dismissal were
insufficient to motivate her termination. Pretext can be shown by demonstrating a substantially
similar individual was not fired even though he engaged in substantially identical conduct that
led to a plaintiff’s termination. Smith, 36 F. App’x at 829-30. A plaintiff must produce
“evidence that other employees, particularly employees not in the protected class, were not
fired even though they engaged in substantially identical conduct to that which the employer
contends motivated its discharge of the plaintiff.” Manzer, 29 F.3d at 1084.
Howard compares herself to Bratcher and relies upon the affidavit of Wanda Pinkston
in support of this argument. [Record No. 43-6] Pinkston was employed by PNC Bank as a
teller, assistant manager, and branch manager until December 2016. [Record No. 43-6, p. 1]
She was the branch manager in Danville, Kentucky, where Bratcher was employed. [Record
No. 43-6, p. 2] Pinkston also avers that she was familiar with the situation involving Howard,
but she does not explain how she came to understand the plaintiff’s situation since she was not
involved in the incident, did not work at the Hamburg branch in Lexington, Kentucky, and was
not involved in investigating complaints. Pinkston testified that Howard’s termination was a
substantial deviation from policy and procedures. Thus, Howard claims that the deviation
from personnel practices creates a genuine issue of material fact.
Pinkston’s affidavit includes information falling outside her personal knowledge.
Further, her assertions regarding policies and procedures deviate from that of a potential fact
witness and, instead, concern specialized knowledge akin to expert testimony. See McFerrin
v. Allstate Prop. & Cas. Co., 29 F. Supp. 3d 924, 933 (E.D. Ky. 2014) (testifying to his opinion
- 13 -

concerning “scientific, technical, or other specialized knowledge” is within the ambit of expert
testimony under Federal Rule of Evidence 702 and needs to be disclosed under Rule 26).
Pinkston is seeking to offer specialized knowledge regarding the practices and procedures of
PNC, but she was never identified as an expert. As a result, Pinkston’s affidavit will not be
considered in deciding whether there was a deviation from typical practice at PNC. See Fed.
R. Civ. Pro. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must
be made on personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.”). In short, the
evidence provided by Howard is insufficient to demonstrate that her termination of
employment was a deviation from typical policies or procedures.
It is also noteworthy that Howard and Bratcher are dissimilar in several respects. First,
Bratcher and Howard had different supervisors. Mitchell, 964 F.3d at 583 (“to be deemed
similarly-situated the individuals with whom the plaintiff seeks to compare her treatment must
have dealt with the same supervisor. . .”). Second, while the conduct of each individual
involved over-the-counter deposits, they did not engage in substantially identical conduct.
Manzer, 29 F.3d at 1084.
Snow concluded that the claim that Bratcher had falsified business records or
documents was unfounded. [Record No. 47-3, p. 3] He noted that Bratcher initialed the log
for a deposit bag, secured it in his coin vault with the intention of processing the bag, but forgot
to actually deposit the bag. [Record No. 43-1, pp. 18-49] He also determined that Bratcher’s
conduct did not violate PNC’s Code of Ethics. [Record No. 47-3] Conversely, Snow found
that Howard violated the bank’s Code of Ethics because she not only initialed the log
improperly, but she failed to ask for help thereafter. Also, as noted previously, Snow
- 14 -

concluded that Howard acted deceptively regarding the incident. [Record No. 43-1, pp. 6974] Howard conduct differs from Bratcher because she actually initialed the log improperly
whereas Bratcher merely initialed the log before finishing the transaction. And Bratcher
received a written warning for his behavior and was subject to further disciplinary action if he
did not demonstrate immediate and sustained improvement. [Record No. 39-7]
An employer’s business judgment is not a valid method for establishing pretext.
Brocklehurst v. PPG Industries, Inc., 123 F.3d 890, 898 (6th Cir. 1997); see also Pruitt v. First
Am. Nat’l Bank, 1999 U.S. App. LEXIS 17971 *1, *15-16 (6th Cir. July 23, 1999) (“Title VII
does not take away an employer’s right to interpret its rules as it chooses, and to make
determinations as it sees fit under those rules.”). After a thorough investigation, Snow
recommended that Howard be terminated for violating the bank’s Code of Ethics by
improperly initialing the deposit log and by failing to ask for guidance after detecting that the
customer had not initialed the document. [Record No. 43-1, p. 74-76]
Howard also compares her situation to that of Wendy Simonsen who was also
terminated for violating PNC policies. Simonsen was terminated for falsifying records by
entering information that was not contained on a Kentucky’s driver’s license while opening
new accounts. [Record No. 47-1] Simonsen was terminated for violating the bank’s Code of
Ethics, similar to the plaintiff, demonstrating that a violation of the Code of Ethics leads to
termination. [Record No. 47-1] Howard compares Simonsen’s termination to Bratcher’s nontermination in an attempt to demonstrate that Snow discriminated against female employees
by utilizing the Pinkston affidavit. It is unclear, however, how Pinkston has information
regarding Simonsen’s situation since she was not working under Pinkston at the time of the

- 15 -

violation. And Howard has not provided any evidence that the decision to terminate Simonsen
was discriminatory.
Finally, Howard also asserts that there are disputed issues of material facts regarding:
(i) an intent requirement in the bank’s Code of Ethics; (ii) whether she attempted to disguise
her initials; and (iii) a telephone conversation of June 6, 2016. But these facts are not material
because they do not cast doubt on the fact that Howard admits that she initialed the deposit log
improperly and never sought guidance thereafter. [Record No. 43-2, p. 22-23] Assuming that
there is an intent requirement, Snow recommended termination because Howard inserted her
initials in an area reserved for the customer. [Record No. 43-1, p. 76; see Anderson v. U.S.
Bank Nat’l Ass’n, 2016 U.S. Dist. LEXIS 84728 (S.D. Ohio June 28, 2016) (holding that even
if there was an intent requirement in the Code of Ethics section, the plaintiffs argument still
failed to undermine the factual basis for her termination because the individual who terminated
her believed that the plaintiff had the intent to manipulate the records).]
Finally, Howard argues that there is a conflict between Snow’s deposition testimony
and the testimony she offered. According to Howard, the first time she spoke to Snow, she
told him that she added her own initials to the log. Conversely, Snow testified that Howard
gave shifting explanations. [Compare Record No. 43-2, p. 93, with Record No. 43-1, pp. 7476.] But this conflict does not overcome the plaintiff’s admissions that she initialed the
document improperly or that she failed to timely report the matter. [Record No. 43-2, p. 2223]

- 16 -

IV.
Based on the foregoing analysis and discussion, PNC Bank is entitled to summary
judgment on the plaintiff’s claims of discrimination. Therefore, it is hereby
ORDERED as follows:
1.

Defendant PNC Bank, N.A.’s Motion for Summary Judgment [Record No. 33]

is GRANTED.
2.

Defendant PNC Bank, N.A.’s Motion for a Protective Order [Record No. 50] is

DENIED, as moot.
3.

Defendant PNC Bank, N.A.’s Motion to Continue the Trial [Record No. 51] is

DENIED, as moot.
Dated: May 2, 2019.

- 17 -