HERSH v. MANUFACTURES AND TRADERS TRUST COMPANY et al

Filing 38

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOHN R. PADOVA ON 5/31/2016. 5/31/2016 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SARAJANE HERSH
v.
MANUFACTURERS AND TRADERS
TRUST COMPANY d/b/a M&T BANK, et
al.

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CIVIL ACTION

NO. 14-6709

MEMORANDUM
Padova, J.

May 31, 2016

Plaintiff Sarajane Hersh filed this employment action against her former employer,
Defendant Manufacturers and Traders Trust Company (“M&T”) and two supervisors at M&T,
Defendants Miguel Baptista and Ira Brown, asserting claims of gender and disability
discrimination, as well as a claim pursuant to the Equal Pay Act, 29 U.S.C. § 206 et seq.
Plaintiff and Defendants have filed Motions for Partial Summary Judgment.

Both

Defendants seek

judgment in their favor on Plaintiff’s gender and disability discrimination claims, and Plaintiff
seeks judgment in her favor on the Equal Pay Act claim. We deny both Motions, as there are
genuine issues of material fact that preclude the entry of summary judgment in any party’s favor at
this time.
I.

BACKGROUND
Plaintiff Sarajane Hersh was hired by Wilmington Trust Company (“Wilmington Trust”)

as a Vice President and Commercial Real Estate Relationship Manager in July 2001, after having
worked for approximately five years as a relationship manager at two different banks. (Concise
Statement of Stipulated Material Facts (“Stip. Facts”), attached as Ex. A to Defs.’ Mot. for Partial

Summ. J., ¶ 1; App. 444-45.1)

Plaintiff was happy with her initial compensation package, which

included a starting salary of $75,000, and a $3,000 signing bonus.

(App. 311-12, 442.)

Typically, a new Relationship Manager (“RM”) at Wilmington Trust was assigned a portfolio of
both existing clients and prospects, i.e., businesses with whom the bank had some relationship but
which had not yet been secured as clients. (Stip. Facts ¶ 6.) When Plaintiff was hired at
Wilmington Trust, she was assigned a portfolio of clients, most of whom were transferred from the
portfolio of another RM who was retiring. (App. 313-14.) Her responsibilities as an RM
included managing her portfolio of current clients, developing prospects into clients, and
independently identifying new prospects. (Stip. Facts ¶ 7.)
In 2003 or 2004, Plaintiff began reporting to Defendant Miguel Baptista, a group manager.
(Stip. Facts ¶¶ 3, 18.)

Two men, Chris Eckardt and Robert Howard, held similar positions to

Plaintiff. (See Exhibit B to Defs.’ Mem of Law in Opp. to Pl.’s Mot. for Partial Summ. J. (“Defs.’
Ex. B”), Part 1, at D001903, D001912.)

Eckardt was hired approximately eight months before

Plaintiff, in October 2000. (App. 494.) Like Plaintiff, Eckardt received a starting salary of
$75,000, but he received a larger signing bonus of $7,500. (Id.) Howard was hired three years
after Plaintiff, in August 2004. (App. 589.) He received a starting salary of $93,500, which was
approximately $15,000 more than Plaintiff’s salary at the time, and he also received a $15,000
signing bonus. (App. 455, 589.) Around the same time that Howard was hired, Eckardt received
a 14.59% raise, which increased his salary to $95,000, similar to Howard’s. (Defs.’ Ex. B, Part 1,
at D001912.)

Plaintiff, however, did not receive a similar raise. (See App. 455.)

In January of 2010, it came to Plaintiff’s attention that, although she had believed her job

1

All cites to “App.” are to the “Appendix to Plaintiff’s Statement of Additional Material
Facts and Plaintiff’s Comments to Defendants’ Statement of Material Facts” (Docket No. 30),
which is the most comprehensive appendix filed in connection with either of the pending motions.
2

title to be Commercial Relationship Manager III (“CRM 3”), her title was actually Commercial
Relationship Manager 1 (“CRM 1”). (App. 343-44.) She asked Baptista about this, and he
confirmed that she was a CRM 1, Grade 18. (App. 513.) At the time, Howard had a higher title
and grade.2 (See App. 101-02.) At Plaintiff’s request, Baptista recommended that Plaintiff’s
title be corrected and she be promoted to a CRM 3, Grade 20. (App. 97-99, 345, 513.) In
conjunction with that correction and promotion, Plaintiff received an 11.11% merit increase
effective in March of 2010 and a second 4.17% merit increase effective in November of that year,
the combination of which brought her salary to $100,000.

(App. 90, 97-99, 346, 453.)

Eckardt

received a similar raise in October of 2010, so that Plaintiff’s salary that year remained much lower
than his adjusted salary of $120,001. (App. 510; Defs.’ Ex. B, Part 1 at D000552). In addition,
Plaintiff’s salary remained lower than Howard’s, which was then $117,000. (Defs.’ Ex. B, Part 1
at D001902-04).
In May 2011, M&T Bank Corporation, M&T’s holding company, acquired Wilmington
Trust through a merger agreement, and Plaintiff became an employee of M&T. (Stip. Facts ¶ 5.)
Following the merger, Plaintiff continued reporting to Baptista, who was one of two Group
Managers for the Commercial Real Estate Department of M&T’s Philadelphia region. (Id. ¶¶
8-9.) Baptista reported to Defendant Ira Brown, the Regional President of the Philadelphia
region. (Id. ¶ 10.)
In connection with the M&T-Wilmington Trust merger, cost reductions were planned, and
those cost reductions included certain reductions in staff. (See App. 147-49.) Brown was
responsible for the staff reductions in the Philadelphia region and had certain reduction targets that
he sought to meet. (App. 149-50.) In identifying staff reductions, Brown worked with his group
2

It appears from the record that Eckardt had temporarily moved to another position within
the company. (See Defs.’ Ex. B, Part 1, at D000632.)
3

managers, including Baptista. (App. 150.)
Shortly after the Wilmington Trust-M&T merger, in August 2011, Baptista offered
Plaintiff the opportunity to move from her position as RM to Portfolio Manager. (Stip. Facts ¶
11.) Brown testified that, at that time, it was apparent that Plaintiff was not good or effective at
developing business. (App. 173, 194.) Plaintiff advised Baptista and Brown on September 27,
2011 that she did not wish to change her position. (Stip. Facts ¶ 12.) After Plaintiff rejected the
position, M&T decided not to hire a new portfolio manager. (App. 190.)
In October 2011, Howard received an $18,000 raise, making his salary $135,000, which far
exceeded Plaintiff’s salary at the time of $102,500. (Defs.’ Ex. B, Part 1, at D001895; App. 591).
M&T paperwork reflects that the reason for this raise was a “Counter Offer,” and Baptista testified
that it was given to Howard because he had been offered a job elsewhere and the Bank desired to
keep him. (Defs.’ Ex. B, Part 1, at D001895; App. 94. )
Plaintiff advised Baptista and Brown on December 19 and 20, 2011, respectively, that she
had been diagnosed with multiple myeloma. (Stip. Facts ¶ 14.) According to Plaintiff, Brown
asked her if she was going to lose her hair.

(App. 337.)

Plaintiff did not request any

accommodations and her medical condition did not affect her ability to do her job. (Stip. Facts ¶
15.) She did, however, take time away from work for treatment, and Baptista did not require her
to use paid time off for her medical appointments. (App. 338-39.)
On December 22, 2011, an M&T memo documented a staffing plan for 2012 that called for
twelve jobs to be eliminated in the Philadelphia region, Delaware and Georgetown. (App. 150,
476-78.) Among the employees slated to be terminated was a Philadelphia RM in Baptista’s
group, Jack Daryanani, who was identified as underperforming. (App. 151-52, 477.) The
reduction list also forecast the departure of another RM in Philadelphia, but no particular employee

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was selected, because it was anticipated that the reduction would be accomplished through
attrition. (App. 153, 477.) Plaintiff’s name was not on the December 22, 2011 reduction list.
(App. 156).
In January of 2012, Daryanani was notified that his job was being eliminated as part of
M&T’s ongoing restructuring. (Stip. Facts ¶ 16.) Around the same time, Plaintiff advised
Baptista that she was now interested in taking the portfolio management position. (Id. ¶ 17.)
According to Baptista, however, he did not have an “open req for a portfolio manager” at that time.
(App. 125.) He nevertheless advised Brown that Plaintiff now wanted the position, and Brown
said that nothing was available. (App. 139.) In addition, Brown believed at the time that
Plaintiff “was failing from a performance standpoint” and, therefore, he was not going to let her
change positions. (App. 197.)
In May of 2012, Brown contemplated additional job reductions to meet the goals set forth
in the December 2011 memo. (App. 156-57.) Brown then began a performance assessment of
employees to determine how to meet the bank-mandated reduction goals. (App. 157.) He
determined that real estate was overstaffed and therefore focused on M&T’s two real estate
groups, which were managed by Baptista and another manager, Bernie Shields. (App. 158-59.)
Brown, Baptista, Shields, and Human Resources worked together to identify who to terminate.
(App. 159-60.)
Notably, Brown signed Plaintiff’s 2011 performance review that same month, i.e., May of
2012. (App. 378.) In that evaluation, Plaintiff was rated “meets expectations” in every category
except two in which she received “exceeds expectations” ratings (diversity and teamwork), and
she received an overall rating of “meets expectations.” (App. 378-386, 105.)

The manager

comments in the business development portion of the assessment state that Plaintiff is not being

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penalized for not having generated any new business in 2011 because, due to the merger, the focus
during that review period due to the merger was on retaining clients, not new business
development, and Plaintiff did well in that regard. (App. 380.) Howard and Eckardt were also
rated “meets expectations” both overall and specifically for business development in their 2011
performance evaluations. (App. 105-06.)
In September 2012, before any additional employee was identified for termination,
Baptista reassigned responsibility for one of Plaintiff’s important clients, Frank McKee, to
Howard. (App. 162, 493.) Although McKee had not been unhappy with his relationship with
Plaintiff, Brown testified that he had concluded, based on his observations, that Plaintiff could not
adequately articulate McKee’s loan needs to the senior loan committee. (App. 162.) Baptista
also assigned to Howard a second prospect for whom Howard and Plaintiff had been sharing
responsibility, Rouse Chamberlain, even though Plaintiff advised him prior to the reassignment
that she and Howard had decided that Plaintiff would take primary responsibility for Chamberlain.
(App. 123-24.)
According to Brown, it was very apparent to him in late 2012 that Plaintiff was weak at
credit underwriting, i.e., getting behind the numbers and helping to structure deals. (App. 173.)
In addition, Baptista testified that there was significant deterioration in Plaintiff’s performance
with regard to her existing portfolio in the Summer and Fall of 2012. (App. 135.) Baptista
elaborated that, in April and June of 2012, Plaintiff sought 90-day extensions to address two
multi-million dollar loans that were maturing, when the loans should have been addressed prior to
maturity. (App. 135-136, 138.)
On November 6, 2012, Plaintiff was placed on non-working status. (Stip. Facts ¶ 18.)
Her employment with M&T ended on January 4, 2013. (Id.) Brown testified that Plaintiff was

6

terminated as part of the Wilmington Trust cost initiative. (App. 200-01.) Brown did not know
if Plaintiff had even been put on a performance plan prior to her termination, but testified that he
hoped Baptista would have told her that she was failing prior to her discharge. (App. 197.)
Brown also testified that he would never terminate an employee based on performance without
first putting them on a performance improvement plan (App. 200), but, in fact, the evidence is that
Plaintiff was never put on a performance improvement plan. (See App. 594 ¶ 26.)
As of November 5, 2012, immediately before M&T notified Plaintiff of her termination,
Plaintiff’s position with M&T was Senior RM, Grade 13. (Stip. Facts ¶ 19.) Howard and
Eckardt had the same titles, grades, and job descriptions. (Id.; App. 532.)

At the time, Plaintiff

had a lower salary ($102,500) than either Howard ($135,000) or Eckardt ($123,000). (App. 532)
Plaintiff submitted a Complaint to the Pennsylvania Human Relations Commission in May
2013, and cross-filed with the Equal Employment Opportunity Commission in July 2013. She
received a right to sue letter and filed her Complaint in the instant action in November 2014.

The

Complaint contains ten counts. Count I asserts a sex discrimination claim against M&T under
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Count II asserts
a parallel sex discrimination claim under the Pennsylvania Human Relations Act (“PHRA”), 43
Pa. Stat. Ann. § 951 et seq. Count III asserts a disability discrimination claim against M&T under
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1210 et seq., and Count IV asserts a
parallel claim under the PHRA. Counts V and VI assert a claim against Baptista for aiding and
abetting sex and disability discrimination under the PHRA. Counts VII and VIII assert aiding and
abetting sex and disability discrimination claims against Brown pursuant to the PHRA. Count IX
asserts a claim under the Equal Pay Act against all three Defendants, and Count X asserts a Title
VII claim against all Defendants, also based on unequal pay.

7

Defendants now move for summary judgment in their favor on the claims set forth in
Counts I through VIII. Plaintiff moves for summary judgment in her favor on the claim in Count
IX. No party has moved with respect to Count X.
II.

LEGAL STANDARD
Summary judgment is appropriate “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). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A
factual dispute is “material” if it “might affect the outcome of the suit under the governing law.”
Id.

In ruling on a summary judgment motion, we consider “the facts and draw all reasonable

inferences in the light most favorable to . . . the party who oppose[s] summary judgment.”
Lamont v. New Jersey, 637 F.3d 177, 179 n.1 (3d Cir. 2011) (citing Scott v. Harris, 550 U.S. 372,
378 (2007)). If a reasonable fact finder could find in the nonmovant’s favor, summary judgment
may not be granted. Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 130 (3d Cir. 2002)
(citation omitted).
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of proof on a particular
issue at trial, the movant’s initial Celotex burden can be met simply by “pointing out to the district
court” that “there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.
After the moving party has met its initial burden, the adverse party’s response “must support the
assertion [that a fact is genuinely disputed] by: (A) citing to particular parts of materials in the

8

record . . . ; or (B) showing that the materials [that the moving party has cited] do not establish the
absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). Summary judgment is appropriate if
the nonmoving party fails to respond with a factual showing “sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322. “‘While the evidence that the non-moving party presents may
be either direct or circumstantial, and need not be as great as a preponderance, the evidence must
be more than a scintilla.’” Galli v. New Jersey Meadowlands Comm’n, 490 F.3d 265, 270 (3d
Cir. 2007) (quoting Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)).
III.

DISCUSSION
A. Defendants’ Motion for Partial Summary Judgment
Defendants seek judgment in their favor on Plaintiff’s claims of sex and disability

discrimination under Title VII, the ADA and the PHRA in Counts I-VIII of the Complaint.
1.

Gender Discrimination

In Counts I, II, V, and VII of the Complaint, Plaintiff contends that Defendants
discriminated against her on the basis of her gender in violation of Title VII and the PHRA when
they terminated her employment. Title VII makes it unlawful for an employer to discharge or
“otherwise 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).

The PHRA similarly provides that it is “an unlawful

discriminatory practice . . . [f]or any employer because of . . . race, color, religious creed, . . . age,
[or] sex, . . . to . . . discharge from employment such individual . . . or to otherwise discriminate
against such individual . . . with respect to compensation, hire, tenure, terms, conditions or
privileges of employment.” 43 Pa. Stat. Ann. § 955(a). We analyze claims brought pursuant to

9

Title VII and the PHRA pursuant to the same standard. See Verma v. Univ. of Pa., Civ. A. No.
11–611, 2012 WL 1835727, at *7 (E.D. Pa. May 18, 2012) (“Discrimination claims under the
PHRA are subject to the same standards as Title VII for purposes of summary judgment.” (citing
Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999))).
To bring a successful claim under Title VII, a plaintiff must prove that “an employer has
‘treated [a] particular person less favorably than others because of’ a protected trait . . . [and] ‘that
the defendant had a discriminatory intent or motive’. . . .” Ricci v. DeStefano, 557 U.S. 557, 577
(2009) (first alteration in original) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
985–986 (1988)). In the absence of direct evidence of discriminatory intent, none of which is
available in this case, Title VII discrimination claims are analyzed under the burden-shifting
framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Kant v.
Seton Hall Univ., 289 F. App’x. 564, 566 (3d Cir. 2008).
“Under McDonnell Douglas, the plaintiff bears the initial burden of demonstrating a prima
facie case of unlawful discrimination . . . .” Dellapenna v. Tredyffrin/Easttown Sch. Dist., 449 F.
App’x 209, 213 (3d Cir. 2011) (citing McDonnell Douglas, 411 U.S. at 802). In order to establish
a prima facie case of gender discrimination, a plaintiff must ordinarily “show that: (1) she was a
member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse
employment action; and (4) members of the opposite sex were treated more favorably.” Burton v.
Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013) (citing Hugh v. Butler Cnty. Family YMCA, 418
F.3d 265, 267 (3d Cir. 2005)). A plaintiff may, however, “also meet the last element by showing
that the adverse employment action ‘occurred under circumstances that could give rise to an
inference of intentional discrimination.’” Id. (quoting Makky v. Chertoff, 541 F.3d 205, 214 (3d
Cir. 2008)).

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Once the plaintiff establishes a prima facie case of discrimination, “‘the burden of
production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its
decision.’” Dellapena, 449 F. App’x at 213 (quoting McDonnell Douglas, 411 U.S. at 802).
“This burden is ‘relatively light’ and is satisfied if the employer provides evidence, which, if true,
would permit a conclusion that it took the adverse employment action for a non-discriminatory
reason.” Burton, 707 F.3d at 426 (quoting Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir.
2006), and citing Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)).
“At this stage, ‘the defendant need not prove that the articulated reason actually motivated its
conduct.’” Id. (quoting Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir.
2003)).
If the defendant meets its burden, “the burden of production [shifts] back to the plaintiff to
provide evidence from which a factfinder could reasonably infer that the employer’s proffered
justification is merely a pretext for discrimination.” Burton, 707 F.3d at 426 (citing Fuentes v.
Perskie, 32 F.3d 759, 764-65 (3d Cir. 1994), and Sarullo v. U.S. Postal Serv., 352 F.3d 789,
799-800 (3d Cir. 2003)). More specifically, 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.’” Burton, 707 F.3d
at 427 (quoting Fuentes, 32 F.3d at 764). “The plaintiff’s evidence . . . ‘must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally find them
unworthy of credence.’” Burton, 707 F.3d at 427 (quoting Fuentes, 32 F.3d at 765).

11

Defendants argue that they are entitled to summary judgment on Counts I, II, V, and VII
both because Plaintiff cannot establish a prima facie case of gender discrimination and because she
cannot show that its legitimate, nondiscriminatory reasons for her termination are pretextual.
a. Prima Facie Case
For purposes of their Motion, Defendants concede that Plaintiff can establish that she is a
member of a protected class, was qualified for her position, and suffered an adverse employment
action insofar as she was discharged from employment. They argue, however, that she cannot
establish that the circumstances of her job loss give rise to an inference of discrimination. Thus,
in order to decide whether Plaintiff has established a prima facie case of gender discrimination, we
must determine whether Plaintiff has pointed to evidence that Defendant treated her differently in
connection with her termination than it did other, similarly situated male employees and/or
whether the termination occurred under other “circumstances that could give rise to an inference of
intentional discrimination.” Burton, 707 F.3d at 426 (quotation omitted).
Plaintiff argues that she can satisfy the fourth prong of her prima facie case because she can
establish that her termination “occurred under circumstances that could give rise to an inference of
intentional discrimination.” Id. (quotation omitted). Specifically, she relies on evidence that:
(1) she always received ratings of “meets expectations” in her performance reviews, and was never
placed on a performance improvement plan; (2) Baptista held sexist attitudes; and (3) she suffered
a long history of discrimination in pay and opportunities at both Wilmington Trust and M&T.
As noted above, the evidence is that, in November 2012, there were three senior
relationship managers in Baptista’s real estate group, two males (Howard and Eckardt) and
Plaintiff, all of whom had the same title and salary grade, and yet Plaintiff was paid significantly
less than both Howard and Eckardt. (Stip. Facts ¶¶ 19-20; App. 532.) Moreover, the evidence

12

reflects that Plaintiff had been paid less than both Howard and Eckardt throughout their careers at
Wilmington Trust and M&T. (See supra, at 2-4.)
The evidence is also clear that Howard and Eckardt retained their jobs with M&T when
Plaintiff was discharged in late 2012. (Stip. Facts ¶ 18; Defs.’ Ex. B, Part 1, at D001884,
D001895.)

Plaintiff’s termination letter stated that her termination was based on a “business

decision to restructure the Philadelphia Commercial Real Estate department.”

(App. 523.)

However, Brown has suggested that Plaintiff was terminated following a performance analysis
and, thus, also based on her performance. (See App. 157-59.) However, throughout Plaintiff’s
employment with Wilmington Trust and later M&T, Plaintiff consistently received ratings of
“meets objectives” or “meets expectations” on her performance evaluations, and there is no
evidence that she was ever put on a performance improvement plan. (App. 385, 393, 403, 410,
415, 426, 439).
With respect to Baptista’s allegedly sexist attitude, there is evidence in the record that, on
at least two occasions in or around 2005, Baptista entertained clients at strip clubs and that, on one
of those occasions, Howard went to the strip club as well. (App 132-33.) The record also
reflects that Baptista held an annual Thanksgiving luncheon on the Wednesday before
Thanksgiving and, at least in 2011 and 2012 (and, indeed, in every year that Baptista could recall),
he invited only men, including male clients, both Howard and Eckardt, and the male spouses of
certain uninvited female bank employees. (App. 125-29, 587.) There is also evidence that
Baptista once stated to Plaintiff: “You frustrate me like my wife frustrates me, and I’m still
married to her.”3 (App. 5 ¶ 9(b)).

3

For this fact and others, Plaintiff cites to her verified Complaint with the Pennsylvania
Human Relations Commission. (App. 3.) “A verified complaint is to be treated as an affidavit
for summary judgment purposes, and therefore will be considered in determining whether material
13

Based on the evidence, viewed in the light most favorable to Plaintiff, we conclude that a
reasonable jury could conclude that Plaintiff’s compensation lagged behind her male counterparts,
in spite of her satisfactory and comparable job performance, and that Plaintiff’s direct supervisor
exhibited behavior that evidenced a discriminatory attitude towards women.

We therefore

conclude that a reasonable jury could conclude that Plaintiff’s termination occurred under
circumstances that give rise to an inference of intentional sex discrimination. Plaintiff has thus
satisfied her initial burden of establishing a prima facie case of discrimination that she was
terminated on account of her gender.
b.

Defendants’ Reasons for Plaintiff’s Termination

Pursuant to McDonnell Douglas, the burden of production shifts to Defendants to articulate
a “legitimate, nondiscriminatory reason” for Plaintiff’s termination. Dellapena, 449 F. App’x at
213 (quotation omitted). Defendants essentially maintain that they terminated Plaintiff because
they were required to accomplish layoffs after the merger and that Plaintiff was the lowest
performing senior relationship manager. Brown testified at his deposition that it was determined
in 2012 that someone’s job had to be eliminated (see App. 147-48, 157), and that the elimination
had to come from the commercial real estate department because that group was overstaffed (App.
158-59). He further testified in that deposition that the bank, as a result, conducted performance
evaluations of the employees, looking at “credit maintenance, credit quality, . . . client interaction,

issues of fact exist, provided that it meets the other requirements for an affidavit under Rule 56(e).”
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (citations omitted)); see also Wright v. City of
Philadelphia, Civ. A. No. 13-5589, 2016 WL 1241775, at *1 n.2 (E.D. Pa. March 30, 2016 (“A
verified complaint is appropriate evidence at summary judgment to the extent that the allegations
in the complaint are based on personal knowledge” (citation omitted)). We also observe that, to
the extent Plaintiff’s reliance on the verified complaint is in any way objectionable, Defendants
have waived their right to challenge it. See 10B Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 2738 (3d ed. 1998) (stating that the failure to move to strike an affidavit
that violates Rule 56(e) will result in the waiver of the objection).
14

. . . new business development, . . . calling efforts and closed business coming out of it,” as well as
the employee’s “ability to clearly articulate their point of view on specific credits to senior
management” and achievement of sales goals. (App. 159-60.) According to Brown, to make
these assessments, they looked at the employees’ annual performance assessments. (App. 160.)
At the conclusion of this process, Plaintiff was terminated, and her male counterparts, Howard and
Eckardt, retained their jobs. (See App. 523.)
Defendants argue that M&T had legitimate, non-discriminatory reasons for selecting
Plaintiff’s position for elimination as part of the cost reduction plan – namely, that she was weak at
new business development and managing her client portfolio.

With respect to business

development, they point to various comments in Plaintiff’s performance evaluations, including (1)
a 2005 comment that Plaintiff “had a challenging year,” closing just $5 million in loans (Ex. C. to
Defs’ Mot. for Partial Summ. J. (“Defs’ Ex. C”), Part 7, at 28), (2) a 2006 comment that Plaintiff
had not met the minimum standard in new business development (id. at 42), (3) a 2007 comment
that Plaintiff had not been able to achieve her new business development performance objective
and must work hard to improve in that area (id. at 72), (4) 2008 and 2009 comments that Plaintiff
needed to improve on building and refining her business development efforts and building a list of
prospects (id. at 96, 107), and (5) a 2012 comment that Plaintiff needed to make new business
development a priority, as she “has failed to generate new business and convert prospects for a
prolonged period of time” (id. at 213). They also point to Brown’s testimony that, in his opinion,
Eckardt and Howard were better at bringing in new business. (App. 201-02). They further direct
our attention to a Senior Relationship Manager Comparison chart that they prepared, which
reflects that, in 2012, Plaintiff achieved only 33% of her new loan goal, and 19% of her target loan
fees. (App. 475.) In contrast, the chart indicates that Eckardt achieved 143% of his new loan

15

goal, and 170% of his target loan fees, and Howard achieved 124% of his new loan goal, and 112%
of his target loan fees. (Id.)
With respect to Plaintiff’s performance in managing her client portfolio, Defendants
observe that Plaintiff testified that one of her clients, Eli Kahn, was taken away from her in January
2012, and she was told that the client had complained to Baptista that she did not sufficiently
understand his business operations (App. 364-65.) At the same time, there is no evidence that a
client ever lodged a similar complaint concerning Howard or Eckardt. Finally, Defendants rely
on Baptista’s testimony that in the Spring and Summer of 2012, Plaintiff was not managing her
clients’ loans well and permitted certain loans to mature without addressing the ramifications of
the loan maturing in a timely manner. (App. 135-36.)
In light of this evidence, we conclude that Defendants have satisfied their burden of
production by articulating (and supporting with record evidence) legitimate and nondiscriminatory
reasons for their decision to terminate Plaintiff.
c.

Pretext

Pursuant to McDonnell-Douglas, the burden shifts back to Plaintiff to point to evidence in
the record from which a reasonable jury could conclude by a preponderance of evidence that
Defendants’ stated reasons for her termination are pretextual. Burton, 707 F.3d at 426 (citations
omitted). Consequently, to defeat Defendants’ Motion for Partial Summary Judgment, 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 427 (quoting Fuentes, 32 F.3d at 764). If she proceeds under the first
option, and she “come[s] forward with evidence that would cause a reasonable factfinder to find

16

the defendant[s’] proffered reason ‘unworthy of credence,’ she need not adduce any evidence of
discrimination beyond her prima facie case to survive summary judgment.” Id. at 430 (quoting
Lichtenstein, 691 F.3d at 310) (additional citations omitted).
Plaintiff maintains that a jury could reasonably conclude, based on the record evidence,
that Defendants’ proffered reasons for terminating her position -- that a layoff was necessary and
she was the lowest performing candidate -- are not credible and, thus, are pretextual. With respect
to Defendants’ assertion that her layoff was a necessary component of M&T’s cost reduction plan,
she points to evidence that a number of individuals previously identified for layoffs in connection
with the merger were instead transferred to other positions. (App. 152-54, 476-78.) She further
notes that there is evidence to support a conclusion that there was an alternative to her own layoff,
because the record reflects that M&T posted an RM position in the Philadelphia region in October
of 2012, and offered the position to a Wilmington-based RM, Melissa Govette, on November 9,
2012, just three days after Plaintiff was put on non-working status. (See App. 498, 506.)
Govette assumed that position shortly thereafter, on December 3, 2012. (App. 506, 556-57.)
Plaintiff also points to evidence that undermines the credibility of Defendants’ assertion that any
layoff had to come from Baptista’s Commercial Real Estate department because that department
was overstaffed – namely, evidence that Baptista’s Commercial Real Estate managers were
“extremely busy” in 2011, and still in need of assistance in 2012. (App. 125.)
Plaintiff further asserts that there is a genuine issue of material fact as to whether her credit
skills had actually declined between August of 2011 and January of 2012, as Brown has testified
(App. 196-97), and maintains that the evidence establishes that she was no different from at least
one other relationship manager in Baptista’s group (albeit not a senior relationship manager),
Carlo DiGiovanni, who was identified in his March 2012 review as failing to see the “big picture.”

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(App. 459.) She also references her 2011 performance review which is dated March 2012 and
signed on May 2, 2012, and which rated her as having met expectations for credit administration
and risk management for the 2011 calendar year. (App. 378, 380). Moreover, the manager
comments on the portion of the review concerning credit skills included comments that Plaintiff
had done a “nice job maintaining her portfolio as it relates to addressing delinquencies and
matured loans,” that she was “proactive with dealing with deficiencies” and that she did “a good
job ensuring that reports were completed and submitted on time.” (App. 380.) Plaintiff also
reiterates that she was never placed on a performance improvement plan (App. 594 at ¶ 26), and
points out that the only documentary evidence regarding her alleged trouble meeting credit
deadlines prior to January 2012 is one email requesting an update concerning an upcoming
deadline and a second commenting that another deal “ha[d] taken too long.” (App. 599-600.)
Plaintiff further asserts that there is evidence from which a jury could conclude that
Defendants’ assertion that she was weak at business development in comparison to Howard and
Eckardt was both incredible and pretextual. She argues that the evidence demonstrates that
Baptista favored Howard and Eckardt when assigning clients and quantifying their business
development successes, thereby giving the two men an unfair business development advantage
over Plaintiff and ultimately assessing them more favorably using more lenient standards. She
points to evidence that in 2011, Baptista chose to reassign to Eckardt an account that was being
handled by another RM who was transferring to Delaware, and then, in his discretion and with
Brown’s approval, characterized a $18 million loan modification for that client in 2012 as new
business on Eckardt’s business ledger, reasoning that it was a “major modification” and thus
merited unorthodox treatment. (App. 120-21, 212, 475.) She also points to evidence that
Baptista used his discretion in 2012 to assign to Howard a top client prospect that both she and

18

Howard were pursuing, and who was potentially worth $10 million, even though Howard and
Plaintiff had agreed that Plaintiff would assume full responsibility for the prospect. (App.
123-24, 246-47, 592.) In addition, Plaintiff points to evidence that Baptista, in 2012, reassigned
to Eckardt a significant client (Frank McKee) who, according to Plaintiff’s record testimony, she
had brought in as a new client ten years before and who, as even Baptista conceded, really liked
Plaintiff. (App. 353-55, 491.) Record evidence reflects that, in August of 2011, Baptista
arranged for Eckardt to take Plaintiff’s place making a presentation about the status of that client’s
account to the senior loan committee, and then, in mid-2012, advised Eckardt that Eckardt would
be taking over the client relationship from Plaintiff, in spite of Baptista’s acknowledgement that
the client would need some convincing as to the change. (App. 217-218, 356-57, 491). Plaintiff
further points to evidence of yet another discretionary decision in 2011 or early 2012, in which
Baptista chose Howard to handle a $35 million construction loan that the bank was underwriting
for a set of clients (237 King Street Partners), which included one of Plaintiff’s clients (for whom
she had handled the acquisition loan for the same project) as well as one of Howard’s clients, and
then assigned Howard the full $35 million credit for the loan, when he could have opted to give
Plaintiff and Howard shared credit, and Howard testified that he would have accepted such an
arrangement. (App. 118-119, 243-44.)
Upon consideration of this evidence and the remaining record, we conclude that there is a
genuine issue of material fact regarding the credibility of Defendants’ proffered reasons for
Plaintiff’s discharge, and that a reasonable fact finder, weighing the evidence, could find
Defendants’ reasons to be “‘unworthy of credence.’”

Burton, 707 F.3d at 430 (quoting

Lichtenstein, 691 F.3d at 310). We therefore deny Defendants’ Motion insofar as it seeks
judgment in their favor on the sex discrimination claims pursuant to Title VII and the PHRA.

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2.

Disability Discrimination

In Counts III. IV, and VI and VIII of the Complaint, Plaintiff claims that Defendants
discriminated against her on the basis of a disability in violation of the ADA and the PHRA when
it terminated her employment.

Title I of the ADA bars discrimination against qualified

individuals “on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions and privileges of employment.” 42 U.S.C. § 12112(a). The PHRA provides that “[i]t
shall be an unlawful discriminatory practice . . . [f]or any employer because of . . . non-job related
handicap or disability. . . to refuse to hire or employ or . . . to otherwise discriminate against such
individual . . . with respect to compensation, hire, tenure, terms, conditions or privileges of
employment.” 43 Pa. Stat. Ann. § 955(a). “The analytical framework used to evaluate a
disability discrimination claim under the PHRA is effectively indistinguishable from that under
the ADA, thus allowing courts to dispose of both ADA and PHRA claims on the same grounds.”
Bialko v. Quaker Oats Co., 434 F. App’x 139, 141-42 n.5 (3d Cir. 2011) (citing Rinehimer v.
Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002)).
“In order to make out a prima facie case of disability discrimination under the ADA, [a
plaintiff] must establish that she (1) has a disability, (2) is a qualified individual, and (3) has
suffered an adverse employment action because of that disability.” Turner v. Hershey Chocolate
USA, 440 F.3d 604, 611 (3d Cir. 2006) (quoting Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d
Cir. 2002); and citing Gaul v. Lucent Techs. Inc., 134 F.3d 576, 580 (3d Cir. 1998)).

Using the

McDonnell Douglas framework, which is applicable to ADA claims as well as Title VII claims,
“[i]f the plaintiff makes a prima facie case, the burden shifts to the defendant to articulate a
legitimate, non-discriminatory reasons for the adverse employment action.” Mercer v. SEPTA,

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608 F. App’x 60, 64 (3d Cir. 2015) (citing Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000)).
“Once the defendant has provided such a justification, the burden then shifts back to the plaintiff to
demonstrate that this stated reason is a mere pretext for discrimination.” Id. at 64-65 (citing
Shaner, 204 F.3d at 500). Here, Defendants argue that Plaintiff cannot establish the third prong of
her prima facie case, i.e., that she lost her job “because of [her] disability,” and further argue that
she cannot establish that their legitimate, non-discriminatory reasons for her discharge are
pretextual.

Turner, 440 F.3d at 611 (citation omitted).

In response to Defendants’ Motion, Plaintiff points to evidence in the record that
Defendants offered to transfer her to the portfolio management position in August 2011, before she
became ill, and refused her request to move to that same position in January of 2012, after her
December 2011 diagnosis with multiple myeloma. (Stip. Facts ¶¶ 11, 14, 17; App. 125.) In her
view, “[t]he timing and circumstances of Defendants’ decision not to allow her to take refuge in
the Portfolio Manager position [in January of 2012] give ample evidence that her cancer diagnosis
was the final contributing factor in Defendants’ determination to” terminate her employment.
(Pl.’s Mem. in Opp. To Defs.’ Mot. for Partial Summ. J. at 12.) Plaintiff avers in her sworn
affidavit that, after her cancer diagnosis, Brown and Baptista became more critical of her. (App.
596 ¶ 60.) By way of example, on January 5, 2012, Baptista criticized her for failing to present at
a December 28, 1011 meeting, when he knew that she was undergoing radiation treatment at the
time. (App. 15 ¶ 34.) In addition, on January 18, 2012, in a one-on-one meeting, Baptista
criticized Plaintiff’s sales performance, stating that she had not been performing well for six
months and warning her that the bank would terminate people who had not met their sales goals in
the prior two years and, in the same meeting, he asked her how many Thursdays she would be out
for chemotherapy. (App. 15 ¶ 36.) Baptista also criticized Plaintiff in 2012 for failing to be

21

sufficiently aggressive with one of her clients. (App. 16 ¶ 38.) There is also evidence in the
record that Brown added another employee to a December 22, 2012 email string between himself
and Plaintiff, even though that email referenced Plaintiff’s cancer treatments, and Plaintiff had not
yet disclosed her illness to others at the bank. (App. 599.) Moreover, when Plaintiff confronted
Baptist with his error, he simply called the mistake “unfortunate” and apologized. (Id.) Finally,
Plaintiff relies on evidence that, in late 2012, M&T announced that it was introducing a new health
plan for 2013 due to “the significant amount spent by M&T and employees on employee health
care [the prior year], over 90% [of which] was associated with the treatment of chronic and
catastrophic conditions,” which, in Plaintiff’s view, demonstrates animosity towards people with
illnesses such as hers. (App. 583-84.)
We conclude that there is sufficient record evidence to establish the third element of
Plaintiff’s prima facie case. Indeed, viewing the totality of the evidence in the light most
favorable to Plaintiff, including Plaintiff’s account of her treatment following her disclosure of her
medical condition and her discharge eleven months later, we conclude that a reasonable jury could
conclude that her termination in November of 2012 was due, at least in part, to discrimination
based on her medical condition. We therefore conclude that Plaintiff has sufficiently set forth a
prima facie case of disability discrimination.
Moreover, for the same reasons we set forth above with respect to Plaintiff’s gender
discrimination claim, we conclude that Defendants have articulated legitimate, non-discriminatory
reasons for her discharge, but that Plaintiff has raised sufficient credibility questions regarding
those reasons to give rise to genuine issues of material fact as to whether she was, instead,
discharged for discriminatory reasons, including disability in addition to gender. We therefore
deny Defendants’ Motion insofar as it seeks judgment in Defendant’s favor with respect to

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Plaintiff’s disability discrimination claims and, thus, deny Defendant’s Motion for Partial
Summary Judgment in its entirety.
B.

Plaintiff’s Motion for Partial Summary Judgment

Plaintiff asks in her Motion for Partial Summary Judgment that we enter judgment in her
favor on Count IX of her Complaint, which is her claim against all three Defendants under the
Equal Pay Act and which seeks compensation for the unequal pay she received from November
21, 2011 through November 5, 2012.
“Unlike . . . Title VII claims, claims based on the Equal Pay Act, 29 U.S.C. § 206 et seq., do
not follow the three-step burden-shifting framework of McDonnell Douglas; rather, they follow a
two-step burden-shifting paradigm.” Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000).
“The plaintiff must first establish a prima facie case by demonstrating that employees of the
opposite sex were paid differently for performing ‘equal work’ – work of substantially equal skill,
effort and responsibility, under similar working conditions.” Id. (citing E.E.O.C. v. Delaware
Dept. of Health & Soc. Servs., 865 F.2d 1408, 1413-14 (3d Cir. 1989)). “The burden of
persuasion then shifts to the employer to demonstrate the applicability of one of the four
affirmative defenses specified in the Act.” Id. (citing E.E.O.C., 865 F.2d at 1414). “The four
affirmative defenses enumerated under the Act are: (i) a bona fide seniority system, (ii) a merit
system, (iii) a system which measures earnings by quantity or quality or production, or (iv) a
differential based on any factor other than sex.” Id. at 107 n.6 (citing 29 U.S.C. § 206(d)(1)). To
establish an affirmative defense, an “employer must submit evidence from which a reasonable
factfinder could conclude not merely that the employer’s proffered reasons could explain the wage
disparity, but that the proffered reasons do in fact explain the wage disparity.” Id. at 107-08
(citation omitted). Thus, to prevail at trial, “an employer [must] submit evidence from which a

23

reasonable factfinder could conclude that the proffered reasons actually motivated the wage
disparity.” Id.
Plaintiff argues that she has submitted evidence that establishes that, during the time period
for which she seeks to recover (November 21, 2011 to November 5, 2012), her two male
counterparts, Eckardt and Howard, held her same job title, had the same job description, and
reported to the same manager (Baptista), and yet her salary was $102,500, Howard’s salary was
$135,000, and Eckardt’s salary was $123,000. (App. 532; Stip. Facts ¶ 19.) She thus maintains
that she had met her prima facie case. She further argues that Defendants have offered no
evidence to prove their apparent affirmative defense, which is that the salary differentials are based
on factors other than gender.
Defendants do not dispute that Plaintiff can establish her prima facie case. They argue,
however, that we should deny Plaintiff’s Motion because, contrary to Plaintiff’s contention, the
record contains sufficient evidence from which a jury could reasonably conclude that Plaintiff’s
salary was lower than that of Eckardt and Howard based on factors other than sex. Generally,
they point to testimony that “[n]ot every relationship manager is paid the same,” and that an RMs’
pay “depends on their background, their experience, how they negotiated when they came in, [and]
their performance percentage increases they get every year based on performance.” (App. 292.)
With respect to the specific salary difference between Eckardt and Plaintiff, Defendants point to
evidence that Eckardt (1) was hired nine months before Plaintiff (see App. 494-95); (2) was hired
for a higher-level position and higher salary grade, i.e., Commercial Loan Representative III,
Grade 19 (App. 496, 511), than the position and grade at which Plaintiff was hired, i.e.,
Commercial Loan Representative II, Grade 17 (App. 448), because he, unlike Plaintiff, held a
Bachelor of Science in Finance and Economics and a Master’s Degree in Business Administration

24

with a concentration in Finance, and had worked as Vice President of Real Estate Finance for his
previous employer (App. 137, 480); (3) spent some time in 2009 in a different department, as a
Senior Loan Workout officer (App. 84-85; Defs.’ Ex. B, Part 1, at D000632); and (4) had a better
performance record than Plaintiff with respect to new business development (App. 201, 203, 475).
With regard to Howard, Defendants point to evidence that Howard (1) was hired after Plaintiff, in
August of 2004 (App. 589); (2) was hired for a higher-level position and higher salary grade
(Commercial Loan Representative III, Grade 19) than Plaintiff because he held a Bachelor of
Science Degree in Finance (App. 136, 481; Defs.’ Ex. B, Part 1, at D00652, D001902); and (3)
received a job offer from another company in 2011, after which he was given an $18,000 raise to
retain him (App. 94-95; Defs.’ Ex. B, Part 1, at D001895, D001903-04); and (4) had more
favorable performance evaluations than Plaintiff, and was a higher producer, particularly with
respect to new business development (App. 202-03, 475).
While Plaintiff maintains that this evidence is insufficient under the standard set forth in
Stanziale because it does not establish that any of these factors were the actual reason for her lower
salary, this argument is based on a misunderstanding of Defendants’ burden in opposing her
summary judgment motion. See Stanziale, 200 F.3d at 108 (“[W]here . . . employers seek
summary judgment as to [an] Equal Pay Act claim, they must produce sufficient evidence that no
rational jury could conclude but that the proffered reasons actually motivated the wage disparity of
which the plaintiff complaints.”) Had Defendants filed their own Motion, seeking judgment in
their favor on Plaintiff’s Equal Pay Act claim, as defendants did in Stanziale, it would be
Defendants’ burden to establish, with undisputed evidence, that the actual reason for the pay
differential was a reason other than Plaintiff’s gender. Where Plaintiff has filed the Motion
seeking judgment in her favor, however, the summary judgment standard requires only that

25

Defendants point to record evidence that creates a genuine issue of material fact as to whether
factors other than sex explain the pay differential. See Fed. R. Civ. P. 56 (a), (c)(1); see also
Galli, 490 F.3d at 270 (stating that the evidence the non-moving presents must be “more than a
scintilla,” but “not as great as a preponderance” (citation omitted)). In this case, Defendants have
clearly done so. Accordingly, we conclude that it is for a jury to weigh the evidence presented
and determine whether the actual reason for the pay differential is Plaintiff’s gender or some other
reason, such as job performance or credentials.

We therefore deny Plaintiff’s Motion for

judgment in her favor on her Equal Pay Act claim in Count IX.
IV.

CONCLUSION
For the foregoing reasons, we deny both Defendants’ and Plaintiff’s Motions for Partial

Summary Judgment. An appropriate Order follows.

BY THE COURT:

/s/ John R. Padova, J.
______________________
John R. Padova, J.

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