PARSON v. THE VANGUARD GROUP

Filing 31

MEMORANDUM SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 7/18/16. 7/18/16 ENTERED AND COPIES E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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THOM W. PARSON,
Plaintiff,
v.
THE VANGUARD GROUP,
Defendant.

CIVIL ACTION
NO. 15-3942

MEMORANDUM
Tucker, C.J.

July 18, 2016

Presently before the Court is Defendant The Vanguard Group’s (“Vanguard’s”) Motion
for Summary Judgment on Plaintiff Thom Parson’s claims of employment discrimination. (Doc.
20.) Upon consideration of the parties’ submissions and for the reasons set forth herein, this
Court GRANTS Vanguard’s Motion.
I.

FACTUAL BACKGROUND
Plaintiff, an African-American, worked at Vanguard from 1987 to May 12, 2014, when

he was terminated at age fifty-one. In the last years of his employment, Plaintiff was a Level B
Document Research Processing Associate (“Processor”) in Vanguard’s Client Relationship
Group. His responsibilities included completing research requests, maintaining standards for
quality and productivity, and responding to client requests for account histories. (Def. Mot. for
Summ. J. Ex. A, Statement of Stipulated Material Facts ¶¶ 1-5, Doc. 20-1 [hereinafter SSMF].)
The department in which Plaintiff worked was predominantly white. (Parson Dep. 104:16−21,
Dec. 15, 2015, Docs. 23-2–23-4; Def.’s Reply Ex. P at VTP000914, Doc. 25-16.)

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From 2010 to mid-January 2014, Plaintiff reported to Angela Rodden, a Caucasian
female born in 1968. (SSMF ¶ 6.) Plaintiff received a “Fully Successful” rating on his 2010
year-end appraisal, but Rodden advised him to “[f]ocus on increasing [his] quality by paying
attention to the details of the client request.” (Def.’s Reply Ex. C, 2010 Appraisal at P248, Doc.
25-3 [hereinafter 2010 Appraisal].) In 2011, Plaintiff received the lower rating of “Further
Development Needed” on his year-end appraisal. (SSMF ¶ 14.) The appraisal noted, “Thom,
you are an experienced associate on the Research team but continue to ask questions on how
something should be processed. It would be expected with your tenure and expertise that you
should be able to analyze and resolve issues more independently without relying on others.”
(Def.’s Reply Ex. D, 2011 Appraisal at P252, Doc. 25-4 [hereinafter 2011 Appraisal].) It
continued, “Thom, another area of development is your decision quality and interpreting client
requests . . . [Y]ou need to demonstrate sound logic and organization when solving problems and
in your decision making.” (Id. at P253.)
Plaintiff’s issues at work continued to escalate in 2012. On February 8, 2012, Plaintiff
received a Written Alert for Performance, which noted that he was not meeting decision-making
competencies. The Written Alert explained, among other things, that Plaintiff “continue[d] to
ask questions on how something should be processed . . . [and was] not able to make quality
decisions when interpreting client requests independently.” (SSMF ¶ 15; Def.’s Reply Ex. E.,
Written Alert for Performance, Feb. 8, 2012, at VTP000214, Doc. 25-5 [hereinafter 2012 Written
Alert].) A few days later, on February 14, 2012, Plaintiff received a Written Alert for Absence,
Lateness, or Dependability for taking excessive unscheduled time off. (SSMF ¶ 16.) By May
14, 2012, Plaintiff had resolved the issues underlying these two Written Alerts. (Def.’s Reply
Ex. F, Midyear Update, June 19, 2012, at VTP000182, Doc. 25-6.) At the end of 2012, however,

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Plaintiff received a “Further Development Needed” on his appraisal, which cited his two Written
Alerts for Performance and a time when Plaintiff did not follow proper procedures for obtaining
work. Rodden noted that Plaintiff “should continue to focus on meeting department quality and
productivity standards consistently throughout the year [and that he] continu[e] to broaden [his]
knowledge in learning additional functions . . . .” (Def.’s Reply Ex. G, 2012 Appraisal at P258,
Doc. 25-7.)
The relationship between Plaintiff and Rodden became increasingly tense during this
time. In June 2013, Plaintiff asked to meet with Rodden to discuss time off. At the meeting,
after discussing changes at the company, Rodden told Plaintiff, “Vanguard may not be the place
for your type.” (Parson Dep. 101:11−16.) Plaintiff felt that “type” as used by Rodden was a
reference to his race. (Id. 104:10-13.) Rodden made another statement several meetings later,
stating, “Vanguard may not be the place for you.” (Id. 103:24−104:3.) Also, while Plaintiff
reported to Rodden, supervisors began called Plaintiff “Willie”, the name of Willie Hubert,
another African-American employee, and Hubert was often called “Thom.” (Id. 117:4-118:5.)
One of the supervisors who called Plaintiff by the wrong name was Anthony Perilli, who later
became Plaintiff’s supervisor. (Parson Dep. 117:22-118:5.) These interactions with supervisors
gave Plaintiff the impression that he “was being discussed.” (Id. 117:15.)
On October 1, 2013, Plaintiff received another Written Alert for Performance, which
stated that, although Plaintiff had “18 years of experience,” he continued to “show
inconsistencies in [his] processing,” “struggle[d] to make quality decisions and continue[d] to
ask many questions on how to process Research requests.” (SSMF ¶ 17; Def.’s Reply Ex. H,
Written Alert for Performance, Oct. 1, 2013, at VTP000246, Doc. 25-8 [hereinafter 2013 Written
Alert].) The Written Alert included five competency gaps and examples thereof. It described an

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incident in which Plaintiff received a client request for check images dating 2008 and prior,
which should have taken about two hours to complete. Plaintiff instead completed the request by
providing checks dated 2008 and later and he took over thirteen hours. (2013 Written Alert at
VTP000246–47.) The Written Alert also included an incident when Plaintiff left a priority
request incomplete over a weekend without notifying the requester or updating the request status
when he could have completed the request by an alternative method. (Id. at VTP000247.)
Plaintiff also “no actioned” a client request that should have been processed and another
associate had to complete it. (Id.)
On December 6, 2013, Rodden identified seven additional instances occurring over two
days when Plaintiff processed requests incorrectly and needed to reprocess them. (Def.’s Reply
Ex. J, E-mail from Angela Rodden to Plaintiff (Dec. 6, 2013, 14:48 EST), Doc. 25-10.) Rodden
then contacted her supervisor, Kyle Esterbrook, about issuing a Formal Warning to Plaintiff. (Id.
Ex. K, Crew Relations Counseling Sessions, Dec. 9, 2013, at VTP000139, Doc. 25-11.) On
December 13, 2013, Plaintiff received a Formal Warning for Performance based on his failure to
close the competency gaps identified in the October 2013 Written Alert. The Formal Warning
stated, “You continue to show inconsistencies in your processing. You struggle to make quality
decisions and continue to ask many questions on how to process Research requests.” (Id. Ex. L,
Formal Warning, Dec. 13, 2013, at VTP000208, Doc. 25-12 [hereinafter Formal Warning].) The
Formal Warning included three examples of competency gaps observed in the two weeks prior.
(SSMF ¶ 18.) First, Plaintiff had received a priority request for a check image, but instead of
processing the request right away, Plaintiff contacted the account representative to ask for fund
and account numbers, resulting in delays. (Formal Warning at VTP000209.) Second, Plaintiff
sent a request to the “No Action” queue when action was needed. (Id.) Third, Plaintiff declined

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to process a request by citing a new service model, which was erroneous and resulted in
inaccurate information and delayed processing. (Id.) Plaintiff electronically signed the Formal
Warning, acknowledging his understanding that “significantly sustained improvement in the
areas mentioned must be made immediately. . . . Failure to meet or maintain the required
performance standards could result in further disciplinary action, up to and including termination
of [his] employment.” (Id.; SSMF ¶ 19.) At the end of 2013, Plaintiff received an appraisal
rating of “Further Development Needed.” (Def.’s Reply Ex. M, 2013 Appraisal, at VTP000200,
Doc. 25-13.)
In mid-January 2014, Plaintiff’s supervisor changed from Rodden to Anthony Perilli, a
Caucasian male born in 1967. (SSMF ¶ 7.) Rodden, Perilli and Plaintiff met for a transition
meeting during which Rodden discussed Plaintiff’s work performance. (Perilli Dep. 17:14–18:8,
Jan. 8, 2016, Doc. 23-7.) After Perilli took on his role as supervisor, he asked Plaintiff why
Plaintiff’s productivity numbers as reported by Vanguard’s Horizon system were low. Plaintiff
responded that the Horizon system was inaccurate. (Parson Dep. 247:18–22.) Horizon, a
Vanguard reporting system, measured productivity as a ratio between the “functions that an
associate performed” as a numerator and the “hours that [the associate is] held accountable for”
as the denominator. (Kerlin Dep. 18:8–18, Mar. 2, 2016, Doc. 23-10.) Perilli contacted Horizon
support personnel to investigate the issue. He then discovered that the system incorrectly
doubled Plaintiff’s work hours from 7.5 to 15, which inflated the denominator in Plaintiff’s
productivity ratio and resulted in lower productivity numbers. (Perilli Dep. 23:13–24, 26:15–
25.) During the time when Plaintiff’s productivity numbers were wrongly reported, Rodden and
then Perilli had supervisory access to Horizon. (Rodden Dep. 9:2–8, 12:13–19, Jan. 8, 2016,
Doc. 23-8; Perilli Dep. 29:7–20, 38:4–25; Kerlin Dep. 28:24–29:1.) Ultimately, neither Perilli

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nor the Horizon support team was able to identify the source of the error. (Perilli Dep. 24:11–12;
Kerlin Dep. 31:4–5, 39:6–7.) Perilli, however, assured Plaintiff that his productivity numbers in
Horizon would not count against Plaintiff’s performance. (Perilli Dep. 23:22–24, 31:1–4.)
The Formal Warning from December 2013 was effective until March 13, 2014, but
because Plaintiff was on leave for a part of this time, Vanguard extended the warning period to
April 9, 2014. (SSMF ¶ 21.) On April 9, 2014, Perilli advised Nina Mattson-Thomas, a Crew
Relations Specialist in Vanguard’s Human Resources department, that Plaintiff had additional
“fall out items” since being placed on the Formal Warning. (Id. ¶ 22.) For example, Plaintiff
had failed to monitor the research hotline as assigned, which resulted in twenty-six missed calls
and five employees being reassigned to handle the calls. (Id.) As a result, on May 12, 2014,
Mattson-Thomas and Perilli met with Plaintiff and terminated him. (Id. ¶ 23.)
II.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, courts shall grant summary judgment in favor

of the moving party “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.” A fact is “material” if it is “one that
might ‘affect the outcome of the suit under governing law.’” Smith v. Johnson & Johnson, 593
F.3d 280, 284 (3d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A dispute as to a material fact is “genuine” if it “is one that ‘may reasonably be
resolved in favor of either party.’” Lomando v. United States, 667 F.3d 363, 371 (3d Cir. 2011)
(quoting Anderson, 477 U.S. at 250).
The movant has the initial “burden of identifying specific portions of the record that
establish the absence of a genuine issue of material fact.” Santini v. Fuentes, 795 F.3d 410, 416
(3d Cir. 2015). “Where the defendant is the moving party, the burden is on the defendant to

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show that the plaintiff has failed to establish one or more essential elements of her case.” Burton
v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). If the movant sustains its initial burden, “the
burden shifts to the nonmoving party to go beyond the pleadings and ‘come forward with
specific facts showing that there is a genuine issue for trial.’” Santini, 795 F.3d at 416 (internal
quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)). When assessing the motion for summary judgment, the court “must construe
all evidence in the light most favorable to the nonmoving party.” Id. Nonetheless, the court
must be mindful that “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the jury could reasonably find for
the plaintiff.” Anderson, 477 U.S. at 252.
III.

DISCUSSION
Vanguard moves for summary judgment on Plaintiff’s claims, arising under various

statutes, of discriminatory termination based on his age and race. 1 The Age Discrimination in
Employment Act of 1967 (“ADEA”) prohibits employers from “fail[ing] or refus[ing] to hire or
to discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s
age[.]” 29 U.S.C. § 623(a). Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits
employers from similarly discriminating based on race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a). The Pennsylvania Human Relations Act (“PHRA”) mirrors the ADEA
and Title VII by prohibiting adverse employment actions based on age and race. 43 Pa. Cons.
Stat. § 955. 42 U.S.C. § 1981 also combats racial discrimination by “protect[ing] the equal right
of ‘[a]ll persons within the jurisdiction of the United States’ to ‘make and enforce contracts’

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Plaintiff has chosen not to proceed on his hostile environment and retaliation claims. Pl.’s Resp. to Def.’s
Mot. for Summ. J. 14 n.2, Doc. 23.

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without respect to race.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474–75 (2006)
(quoting 42 U.S.C. § 1981(a)).
For disparate treatment claims arising under the ADEA, Title VII, the PHRA, and Section
1981, when evidence of discrimination is circumstantial, the court is to apply the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See Burton,
707 F.3d at 425–26 (applying McDonnell Douglas in an ADEA and Title VII case based on
indirect evidence); Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999) (applying
McDonnell Douglas to a plaintiff’s disparate treatment race discrimination claims under Title
VII, Section 1981, and the PHRA); see also Faush v. Tuesday Morning, Inc., 808 F.3d 208, 213
(3d Cir. 2015) (“Claims brought under the [PHRA] are generally interpreted coextensively with
Title VII claims.” (internal quotation marks omitted)); Anderson v. Wachovia Mortg. Corp., 621
F.3d 261, 267 (3d Cir. 2010) (“We have previously applied the tests used to evaluate
employment discrimination claims brought under Title VII . . . to employment discrimination
claims brought under § 1981, since ‘the substantive elements of a claim under section 1981 are
generally identical to the elements of an employment discrimination claim under Title VII.’”
(quoting Brown v. J. Kaz, Inc., 581 F.3d 175, 181–82 (3d Cir. 2009)).
The first step in the McDonnell Douglas analysis is for the plaintiff to make a prima facie
case of employment discrimination. Burton, 707 F.3d at 426. At summary judgment, “‘the
evidence must be sufficient to convince a reasonable factfinder to find all of the elements of [the]
prima facie case.’” Id. (quoting Duffy v. Paper Magic Grp., 265 F.3d 163, 167 (3d Cir. 2001)).
The plaintiff makes a prima facie case of age discrimination by showing that: “(1) [he] is forty
years of age or older; (2) the defendant took an adverse employment action against [him]; (3)
[he] was qualified for the position in question; and (4) [he] was ultimately replaced by another

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employee who was sufficiently younger to support an inference of discriminatory animus.” Id.
To make a prima facie case of discrimination based on race, the plaintiff must show that: “(1)
[he] is a member of a protected class; (2) [he] was qualified for the position he sought to attain or
retain; (3) [he] suffered an adverse employment action; and (4) the action occurred under
circumstances that could give rise to an inference of intentional discrimination.” Makky v.
Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).
If the plaintiff makes a prima facie case, the burden of production shifts to the defendant
employer to provide a legitimate, non-discriminatory reason for the adverse action. Burton, 707
F.3d at 426. This “relatively light” burden “is satisfied if the employer provides evidence,
which, if true, would permit a conclusion that it took the adverse employment action for a nondiscriminatory reason.” Id. The defendant does not, however, need to prove that the proferred
reason actually motivated its conduct. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
254 (1981).
If the defendant carries its burden of providing a legitimate non-discriminatory reason for
its conduct, the burden of production shifts back to the plaintiff to demonstrate that the proffered
reason is pretextual. Burton, 707 F.3d at 426. “To make a showing of pretext, ‘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 427 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
“[I]f the plaintiff has pointed to evidence sufficiently to discredit the defendant’s proffered
reasons, to survive summary judgment the plaintiff need not also come forward with additional
evidence of discrimination beyond his or her prima facie case.” Fuentes, 32 F.3d at 764.

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Therefore, the plaintiff need not present direct evidence of discriminatory animus to show pretext
and survive summary judgment. Burton, 707 F.3d at 427.
A. Vanguard is Entitled to Summary Judgment on Plaintiff’s Age Discrimination
Claims
The Court first addresses Vanguard’s motion for summary judgment on Plaintiff’s age
discrimination claims. The parties do not dispute the first three elements of Plaintiff’s prima
facie case, namely, that Plaintiff is over 40 years old, Vanguard terminated his employment, and
Plaintiff was qualified to be a Processor. (See Def.’s Mot. for Summ. J. 3.) Vanguard focuses on
the fourth element, arguing that Plaintiff lacks sufficient evidence to support an inference of
intentional age discrimination. This Court agrees. Plaintiff’s briefing fails to point to any
specific fact to suggest that Vanguard terminated Plaintiff because of his age. Indeed, the
Court’s review of the record uncovers little to support any inference of age discrimination. 2

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At Plaintiff’s deposition, Vanguard’s counsel questioned Plaintiff about whether he heard comments from
Angela Rodden, Anthony Perilli, or Nina Mattson-Thomas to suggest a bias against individuals based on their age.
Plaintiff answered in the negative. (Parson Dep. 123:11-125:18 (Rodden), 125:19-126:3 (Perilli), 128:3-129:19
(Mattson-Thomas)). In answering these questions, Plaintiff kept referring not to age bias, but to racial bias:
Q: Did anyone ever tell you that they had heard Angela Rodden say something that suggested a
bias by her against people because of their age?
A: Well, the only other people that would have had something to say were whites on the staff.
So I don’t think it would have been anything to concern them and I wouldn’t see why she
would have brought anything up to them either. . . .
Q: Did anyone ever tell you they heard Nina Matson-Thomas [sic] say something that suggested
she had a bias against people because of their age?
A: Conversations about Nina would be, since Nina is black, that she should be ashamed of
herself because she seems to have no problem in effect helping Vanguard with the removal of
the blacks.
(Id. 124:13–22, 128:10–19.)
In later testimony, Plaintiff stated that age may have been a factor for Perilli’s conduct, but he again turns
to race:
Q: Now, with Tony Perilli, did you think that he had a bias against you because of your age?
A: I would not doubt for one second that age—that age would have come into play, and that’s
another case it was always hard to understand who was being forced out, you know, the first
three blacks that I mentioned before, yet we worked in a department where there were three
gentlemen that were the age of 60 years old. Well, two were 60. One was possibly 59. And
they – they went through their day with enjoyment. . . .
Q: And what are you saying about those three people?
A: I’m just saying that those were three white individuals that never seemed to have any issues,
never seemed to have any problems. When [three African-American employees] were pushed
out, it was like, oh, they’re getting rid of them because they’re the oldest ones.

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Plaintiff has therefore failed to present a prima facie case of discrimination and Vanguard is
entitled to summary judgment on Plaintiff’s ADEA and PHRA age discrimination claims.
B. Vanguard is Entitled to Summary Judgment on Plaintiff’s Race Discrimination
Claims
The Court next addresses Vanguard’s motion for summary judgment on Plaintiff’s race
discrimination claims. Again, Vanguard does not dispute the first three elements of Plaintiff’s
prima facie case. It argues, however, that Plaintiff provides no evidence to support an inference
of racial discrimination. Plaintiff responds that he worked for over two decades without issue
until Rodden became his supervisor, which is when his performance problems began. (Compare
2010 Appraisal at P248 (noting a rating of “Fully Successful”), with 2011 Appraisal at P253
(noting a rating of “Further Development Needed”).) Rodden made a comment to Plaintiff,
which he took to be racial in nature, stating, “Vanguard may not be the place for your type.”
(Parson Dep. 101:11−16.) Several supervisors, including Perilli, called Plaintiff by the name of
another black male in the department. (Parson Dep. 117:4–118:5.) And Plaintiff’s productivity
was erroneously calculated in Vanguard’s Horizon system, which his supervisors had the ability
to manipulate. (Perilli Dep. 29:7–20; Rodden Dep. 9:2–8, 12:13–19; Kerlin Dep. 28:24-29:1.)
Together, Plaintiff argues, these facts support an inference of racial discrimination by supervisors
at Vanguard. The Court agrees that Plaintiff’s performance began to decline only under
Rodden’s supervision, who had commented on Plaintiff’s “type.” Construing the evidence in the
light most favorable to Plaintiff, the Court also finds that supervisors calling Plaintiff the wrong
name and erroneous reporting in Horizon could give rise to an inference of discrimination. See
Burdine, 450 U.S. at 254 (“[T]he prima facie case raises an inference of discrimination only
because we presume these acts, if otherwise unexplained, are more likely than not based on the
(Id. 265:14–266:24.) Upon consideration of Plaintiff’s testimony and the record of this case, the Court fails
to find specific facts upon which to infer that Vanguard terminated Plaintiff because of his age.

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consideration of impermissible factors.” (internal quotation marks omitted)). Accordingly, the
Court finds that Plaintiff has presented sufficient evidence to establish a prima facie case of race
discrimination. See id. at 253 (“The burden of establishing a prima facie case of disparate
treatment is not onerous.”)
The burden of production now shifting to Vanguard, Vanguard articulates that its
legitimate, non-discriminatory reason for Plaintiff’s termination was his “continued poor quality
of work.” (Def.’s Reply in Supp. of Mot. for Summ. J. 21, Doc. 25.) Vanguard points to
Plaintiff’s poor year-end appraisals for 2011, 2012, and 2013 and his receipt of two Written
Alerts and a Formal Warning. Underlying these disciplinary actions was Plaintiff’s “failure to
demonstrate sound judgment, failure to expand his job knowledge to allow him to work
independently, and failure to learn from his own experience.” (Id.) The record supports
Vanguard’s contentions. (See 2011 Appraisal at P252 (“Thom, you are an experienced associate
on the Research team but continue to ask questions on how something should be processed.”);
2012 Written Alert at VTP000214 (“Thom, you . . . continue to ask questions on how something
should be processed. You are not able to make quality decisions when interpreting client
requests independently.”); 2013 Written Alert at VTP000246 (“You struggle to make quality
decisions and continue to ask many questions . . . . Does not demonstrate sound judgement [sic]
in making decisions on how to process requests . . . . Does not take responsibility to learn and
improve.”); Formal Warning at VTP000208 (“You struggle to make quality decisions and
continue to ask many questions on how to process Research requests.”); Def.’s Reply Ex. Q,
Crew Relations Counseling Sessions, May 12, 2014, at VTP000160, Doc. 25-17 (noting
“Thom’s separation from VG [Vanguard] due to unsatisfactory performance”)). The Court

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therefore finds that Vanguard presents sufficient evidence to support a legitimate, nondiscriminatory reason for Plaintiff’s termination.
Plaintiff now bears the burden of showing that Vanguard’s articulated legitimate
reason—his deficient work performance—was pretextual. As discussed, Plaintiff may make this
showing in one of two ways by identifying evidence from which a factfinder could reasonably
either (1) disbelieve Vanguard’s proferred justification, or (2) believe that racial animus was
more likely than not a motivating or determinative cause of Plaintiff’s termination. Burton, 707
F.3d at 427. If a plaintiff attacks the credibility of an employer’s articulated legitimate reasons
for its action, his evidence “must demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proferred legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the
employer did not act for [the asserted] non-discriminatory reasons.” Fuentes, 32 F.3d at 765
(internal quotation marks and citation omitted). To make this showing, Plaintiff here relies on
the same evidence upon which he based his prima facie case of race discrimination.
This Court concludes that Plaintiff has not carried his burden of demonstrating pretext.
First, Plaintiff cites his work history prior to Rodden’s supervision, during which Plaintiff never
received any discipline. This, however, neither contradicts Vanguard’s contention that Plaintiff’s
performance declined in the last years of his employment nor is probative of discrimination. See
Kautz v. Met-Pro Corp., 412 F.3d 463, 474 (3d Cir. 2005) (“The attempt to use past positive
performance reviews to show that more recent criticism was pretextual fails as a matter of law.”)
Plaintiff himself admits that his performance at the end of his employment changed: “I said it
was like tripping at the finish line[,] there were a few mistakes that were made,” and “there
probably was a mistake or two, but I had been doing so well and as I said, I tripped right in front

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of the finish lane [sic].” (Parson Dep. 280:14–16, 282:3–7.) For example, Plaintiff admits that
he failed to monitor the research hotline on his assigned day, which was one of the infractions
resulting in his termination. (SMF ¶ 22; Parson Dep. 299:9–16.)
Second, Plaintiff states that his negative appraisals, Written Alerts, and Formal Warning
occurred under the supervision of Rodden, a Caucasian supervisor, who commented that
Vanguard may not be the place for Plaintiff’s “type.” Plaintiff implies that Rodden targeted her
criticism at him because of his race and it was her negative evaluations that resulted in his
eventual termination. The evidence, however, does not show how discriminatory animus was
part of the decision-making process surrounding his termination. Rodden did not have any hand
in the decision to terminate Plaintiff. Rodden’s comment about Plaintiff’s “type,” made
approximately eleven months prior to his termination, is unrelated to the termination decision
and best characterized as a “stray remark,” which does not bear great weight in a pretext
analysis. Kargbo v. Phila. Corp. for Aging, 16 F. Supp. 3d 512, 528 (E.D. Pa. 2014) (quoting
Hook v. Ernst & Young, 28 F.3d 366, 375 (3d Cir. 1994)) (defining “stray remarks” as
“[s]tatements divorced from the employment decision” and noting how stray remarks “can be
considered as part of the evidence of pretext, but alone are insufficient to show racial animus”).
Stray remarks, in combination with evidence to discredit an employer’s legitimate nondiscriminatory reason, may support a showing of pretext. Id. As this Court will continue to
discuss, however, Plaintiff has not provided sufficient evidence to disbelieve that Vanguard
terminated him because of his poor performance.
Third, Plaintiff presents evidence that Perilli and other supervisors called him by the
name of another black male employee, Willie Hubert, arguing, “This is clear evidence of racial
bias by Pirelli [sic].” (Pl.’s Resp. at 17, Doc. 23.) The Court, however, is not convinced.

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Plaintiff’s testimony describes these incidents as mistaken identifications rather than examples of
racial bias. 3 This evidence is therefore insufficient to allow a disbelief that Perilli terminated
Plaintiff for his performance or to show that racial discrimination was more likely than not a
determinative cause of Plaintiff’s firing. Plaintiff also points to his observations that Vanguard
“fired or forced out” thirteen employees from his department and eleven, including him, were
African-American. (Id.) It is true that “statistics as to [a defendant’s] employment policy and
practice may be helpful to a determination of whether [a defendant’s action] conformed to a
general pattern of discrimination against blacks.” McDonnell Douglas Corp., 411 U.S. at 805.
Without more information about whether these former Vanguard employees were adequately
qualified for their positions, however, this Court cannot conclude that Plaintiff’s observations are
probative of discrimination. 4 See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509,

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Plaintiff’s testimony included the following:
A: There are a host of other supervisors on the other side that just didn’t know me. After
Supervisor Rodden arrived, I just started to notice more of them started to speak to me and
say hello to me and, you know, I just thought it was odd at first and then it got to the point
where—they weren’t calling me Thom. They were calling me Willie. And honestly, it was
every one of them. And then they would see Willie and they would call him Thom.
So the mindset was that why does everybody know us all of a sudden, you know, why are
they speaking to us, and it just kind of started to give me the mindset that I was being
discussed. . . .
I hadn’t known Tony Perilli at this point either. Tony was calling me Willie, calling Willie
Thom. . . .
I—it annoyed me. I thought it was disrespectful.
Q: Okay. You thought it was disrespectful that they were calling you by the wrong name?
A: They were calling me—yeah. To me we look completely different and I resented it and
Willie would just laugh and laugh . . . That’s just something that annoyed me, that’s all, but
with that it made me believe—again, these were not people that spoke to me before Angela
Rodden arrived. . . .
Q: [W]hen these individuals called you by the wrong name, did you ever correct them and tell
them your correct name?
A: Normally—I don’t think I did.
Q: Okay. Why not?
A: There’s something that was—in me that was like, well, I don’t want them to look foolish. So
I just said hi and just— my mindset was that we looked nothing alike.
(Parson Dep. 116:22–121:8.)
4

Further, regarding the circumstances surrounding the departure of ten other black employees, Plaintiff’s
evidence is either speculative or based on hearsay. Two of the employees had spoken directly with Plaintiff about
their decision to retire after their supervisors harassed and/or threatened them regarding their competency. (Parson

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542–43 (3d Cir. 1992) (rejecting a plaintiff’s “raw numerical comparisons” to support pretext
when they “are not accompanied by any analysis of either the qualified applicant pool or the flow
of qualified candidates over a relevant time period”).
Fourth, Plaintiff points out how Rodden “made sure to make it clear to Pirelli right out of
the gate when he replaced her as Plaintiff’s manager that Plaintiff was—in her eyes—a poor
performer.” (Pl.’s Resp. at 17.) Plaintiff relies on Perilli’s testimony:
Q: And when did you first begin perceiving that there may be a performance
problem with Thom?
A: That was introduced to me when Thom, myself and Angela first met.
Q: And how did that occur?
A: That was our transition meeting. . . .
Q: To the best of your ability, can you relate to me what was discussed about it? .
..
A: Angela presented me with what was written on the formal warning, that
Thom—had been issued to Thom. I don’t recall the specifics of the
situation—the situations, but I know there were seven/eight, maybe, incidents
that were documented in that document.
(Perilli Dep. 17:14–18:8.) This evidence, however, does not show pretext. It neither
demonstrates racial animus nor discredits Vanguard’s legitimate, non-discriminatory reason for
terminating Plaintiff. Rather, Rodden’s conduct during her transition with Perilli concerned
Plaintiff’s work performance, which is a legitimate ground for their meeting and supports
Vanguard’s assertion that Plaintiff’s termination resulted from performance issues.
Fifth, Plaintiff refers to the erroneous reporting of Plaintiff’s productivity in the Horizon
system as evidence of pretext. Plaintiff asserts that Rodden and Perilli had supervisory access to
Horizon such that they could improperly lower Plaintiff’s reported productivity. Plaintiff’s
conclusion is that, because Rodden and Perilli could have altered his productivity numbers, they
Dep. 139:22–142:20; Def.’s Reply Ex. W at 10.) Another had discussed taking an early retirement because he was
“made to be so miserable[.]” (Parson Dep. 152:11.) Plaintiff attended the retirement party of two others. (Id.
155:7–18, 155:16–21, 157:2–14.) Three departed without explanation. (Id. 154:1–5, 158: 11–17, 172:16–22.) And
Plaintiff learned of the termination of two others through coworkers. (Id. 146:8–11, 171:10–15.)

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did so to create false grounds for termination. Plaintiff’s position, however, is speculative and
not supported by the record. Testimony provided by Michael Kerlin, a member of the Horizon
support team, shows that it is unlikely that Rodden or Perilli sabotaged Plaintiff’s productivity
numbers. Kerlin attempted to replicate the error manually by doubling an associate’s work
hours, but was unable to. (Kerlin Dep. 29:4–23.) He found no evidence that Perilli had doubled
Plaintiff’s work hours in Horizon and ruled out the likelihood that any human intervention
caused the error. (Kerlin Dep. 49:25–50:18, 29:2–23.) Further, Plaintiff provides no evidence
that his incorrect productivity numbers contributed to his termination. (See Parson Dep. 254:4–
7, 257:19–258:1 (“Q: Did there come a time when Tony told you that the Horizon numbers are
off the table? A: Yes.”); Perilli Dep. 23:22–24.) Indeed, his termination rested primarily on the
inconsistent quality of Plaintiff’s work and his failure to use sound judgment. (See Def.’s Reply
Ex. P, Request for Termination, Doc. 25-16.) Even if Plaintiff had strong productivity numbers,
it does not contradict Vanguard’s assertion that his termination was for performance since one
can be productive without producing quality work.
Upon consideration of Plaintiff’s evidence purporting to show that Vanguard’s legitimate
non-discriminatory reason for termination was pretextual, this Court does not find it sufficient to
defeat summary judgment. Based on the evidence, a factfinder cannot reasonably conclude that
Vanguard’s articulated justification was unworthy of credence or that discriminatory animus was
more likely than not a motivating factor in Plaintiff’s termination. Accordingly, Vanguard is
entitled to summary judgment on Plaintiff’s race discrimination claims under Title VII, the
PHRA, and Section 1981.

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IV.

CONCLUSION
For the reasons set forth herein, the Court concludes that Plaintiff has failed to present

specific facts to show there is a genuine issue for trial and Vanguard’s motion for summary
judgment is GRANTED.

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