MA v. WESTINGHOUSE ELECTRIC COMPANY, LLC
Filing
50
MEMORANDUM OPINION AND ORDER granting 40 Motion for Summary Judgment. Signed by Judge Terrence F. McVerry on 4/26/13. (mh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MIMI MA,
Plaintiff,
v
WESTINGHOUSE ELECTRIC COMPANY,
LLC,
Defendant.
)
)
)
) 2:11-cv-970
)
)
)
)
)
MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court is DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Document No. 40) filed by Westinghouse Electric Company, LLC (“Westinghouse”), with brief
in support. Plaintiff Mimi Ma (“Ma”) filed a brief in opposition to the motion and Westinghouse
filed a reply brief. In addition, both parties have thoroughly developed their respective positions
as to the Concise Statement of Material Facts (“CSMF”) and have submitted numerous exhibits.
The motion is ripe for disposition.
Factual and Procedural Background
In this case, Ma claims that her employment was terminated due to discrimination based
on her gender and/or religion, in violation of Title VII and the Pennsylvania Human Relations
Act (“PHRA”). She also asserts a retaliation claim. The parties agree that the claims are timely
and that Ma exhausted her administrative remedies.
1
Ma is female, Muslim, and wears a head scarf. Ma applied for a position with
Westinghouse in the fall of 2007.1 On November 19, 2007 she was hired as Project Excellence
Program Manager at a salary of $135,000 per year. Her duties included primary leadership
responsibility for the Project Excellence (“PEX”) program, a global effort to improve project
management practices; provide a standard set of project management tools; and increase
standardization in project execution. The goal was to improve how Westinghouse worked with
its customers. Project Excellence had been underperforming since its inception. Viewing the
record in the light most favorable to Ma, she was the only employee at the Monroeville facility
who wore a head scarf and the only Muslim. Westinghouse does not keep records of religious
affiliation and the managers who were deposed in this case did not know the religious affiliations
of their employees.
When Ma began her employment, the Project Excellence program was part of the
Customer 1st department and Ma reported to Rick Easterling. After two months, Easterling
relocated to Sweden and Ma reported to Jeff Hydeman. In April 2008, Easterling prepared a
Performance Review for Ma, with input from Hydeman.2 The review was generally positive,
noting inter alia that Ma had engaged very quickly; built a relationship network with her
counterparts; mentored Nuclear Services project managers; been twice been asked to participate
on Westinghouse-wide teams; kept senior management informed of her proposals; and was
developing some very good and creative initiatives in project management. Ma was given a
rating of P4. The review noted that although her performance appeared to exceed expectations,
“it is too early to determine long term performance.” Ma was directed to “continue to strive to
1
Although not relevant to the merits of these claims, the parties agree that Ma failed to disclose on her application
that she had been terminated from her prior employment at ESI.
2
Hydeman rated Ma as “Needs Development” in two areas and commented: “Plans/strategy for Project Excellence
has been slow in coming”; and “Need to start showing some results relative to improving the PE program.”
Easterling agreed with these comments. Easterling Deposition at 32-33.
2
make improvements in the Project Excellence program” and to “balance working on initiatives
with solving day to day problems.”
In August 2008, a new organization was created within Westinghouse called Nuclear
Services Major Business Delivery (“MBD”). Michael Kaveney was appointed as Director of
MBD. In the announcement of the new organization, it was explained that Kaveney would
“have responsibility for Project Excellence and setting project management standards and
processes globally.” It was further explained that Ma would maintain her position as manager of
Project Excellence and would report to Kaveney. Ma asserts that Project Excellence leadership
was to be her responsibility. Response to CSMF ¶ 44.
The working relationship between Ma and Kaveney deteriorated quickly. One of
Kaveney’s first interactions with Ma was to discipline her for poor judgment in presenting a
mock torture video to a global conference on August 28, 2008, while she was still in the
Customer 1st group. Several days later, Ma told a mentor, Michele DeWitt, that Kaveney was
rude and hostile to her.3 Kaveney was more of a hands-on manager than either Easterling or
Hydeman had been. Ma and Kaveney had numerous meetings from October 2008 through
January 2009. In particular, Kaveney and Ma discussed his visions for Project Scorecard and
Project Excellence in detail, and his displeasure with the lack of progress on the Project
Excellence report card.
In February 2009, Ma complained to human resources that Kaveney was rude and
condescending, withheld resources, withheld key information, excluded her from meetings, and
assigned her responsibilities to others. In response, Clayton Jennings, the Human Resources
Director of Nuclear Services, met with Kaveney to discuss the complaints. Kaveney then created
a spreadsheet and timeline which detailed his interactions with Ma. Defendant’s Exh. D.
3
DeWitt worked in a different product line at Westinghouse and had no first-hand knowledge of Ma’s performance.
3
Among other entries, the spreadsheet states that on September 5, 2008 Kaveney assigned Ma
three priorities: (1) completion of the Project Excellence scorecard; (2) utilization of project
scorecards for all projects in Nuclear Services; and (3) training of personnel worldwide to meet
business segment goals. On October 24, 2008, Kaveney reinforced that the following priorities
were required to be achieved prior to working on any “nice to haves”: (1) need to have a Project
Excellence scorecard in place; (2) deliver on a completed Sharepoint site with communication
throughout NS by January; and (3) finalize C1st project to tackle PEX issues. The spreadsheet
listed numerous dates on which Kaveney met with Ma regarding uncompleted tasks and
deliverables. In the spreadsheet, Kaveney also documented his frustration that he often did not
know where Ma was going or what she was doing. Further, Kaveney noted that he had “handed
significant efforts over to others in group (Zuppinger and Zellner) that were Mimi’s
responsibility because I needed to get them done.” Ma disputes the dates of some of the entries
and does not recall being told that training was one of her priorities. On February 11, 2009,
Kaveney and Ma met with Brenda Boyd, Manager of Human Resources for the Corporate Center
to discuss her complaints.
On February 16, 2009, Ma sent an email to DeWitt to seek advice. Ma stated that the
“heart of the matter” was that “Kaveney never intended to work with me from the outset, and he
and Bill [Zuppinger] have made themselves the de facto PEX Leads.” Ma stated: “I do not
know for certain what motivated Kaveney & Bill to take this course of action.” She also
purported to quote the explanation given by Kaveney during the meeting for removing
management responsibilities from her: “I have reduced your management role because I lost
confidence in you due to your inability to meet deadlines. I have taken responsibility for PEX
and given your work to others because you have not been able to manage.” After detailing her
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disagreement with many of Kaveney’s criticisms of her performance, Ma states: “Kaveney’s
weak justification that I missed one or two deadlines does not constitute a strong enough reason
for him to take such a drastic action . . . .” DeWitt testified that Ma never told her that she was
being discriminated against, and that DeWitt never suggested that the situations were
discriminatory. DeWitt Deposition at 23-24, 30. Ma conceded that she never used the word
“discrimination,” but testified that she did tell DeWitt that she was being treated differently and
treated badly. Ma Deposition at 288-289.4
On March 17, 2009 Kaveney sent an email to Ma to ask about the status of certain
projects and to express his desire, as “Project Champion,” to attend a kickoff event. In actuality,
the kickoff event had occurred that morning and Ma had not invited Kaveney. Ma’s responses
were unsatisfactory and Kaveney sent a series of followup emails. Eventually, Kaveney wrote:
“Frankly, the tit for tat responses I’m receiving are unprofessional and they need to end. I have
asked this twice now, but I’ll ask a third time.” Ma sent a reply email, which stated, in part, that
her earlier responses were “concise and completely professional”; that contrary to Kaveney’s
belief Project Champions were not always present at kickoffs; and that if he had expressed
interest, she would have invited him. Kaveney forwarded the entire email exchange to Boyd,
with the following comment: “She never does anything wrong… This is going to deteriorate
fast, how to coach, teach, train, and most importantly rely on someone who is never wrong?
Venting….”
In May 2009, Kaveney and Ma had an email exchange regarding Project Scorecard
Compliance Results. Kaveney noted that Ma had not told him of an illness which had caused her
to miss a deadline by four work-days despite numerous reminders; instructed her to
4
Ma further testified that in response, DeWitt said it seemed odd and suggested that “perhaps Mike has a problem
with women or people with your religious background.” Ma Deposition at 289. DeWitt denied making any such
comment. DeWitt Deposition at 43.
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communicate better and to build contingencies into her timing; and observed that “the time for
trying to explain away your lack of delivery has long past [sic].” Kaveney then stated: “If this
had been an isolated incident it could be understood: instead there is a six-plus-month pattern of
excuses, explanations and justifications for any and all lack of delivery. You need to spend a
whole lot less effort on trying to explain why it didn’t happen and a whole lot more effort on
making it happen.” Ma replied that Kaveney had made “unfair and false accusations” in that: (1)
the project was not four work-days late because she thought the deadline was Friday and she sent
it the next Monday; and (2) there could not have been “numerous” reminders in person because
they had only met in person once the prior week. Ma also stated: “I will not apologize for being
a human being, and an unexpected health issue can trigger a delay for anyone.” Ma also stated
that the emails are an example of how “you [Kaveney] were clearly wrong.”
In June 2009, Kaveney completed Ma’s annual performance review. He rated her “-P2”
for below expectations/not meeting objectives. The review recognized that Ma had worked hard
to be involved with Project Excellence globally, had many new ideas, was recognized as a PMI
professional and was a competent presenter. On the other hand, Ma was rated as “far from
meeting expectations as a leader to achieve critical strategic goals” due to: (1) numerous
instances of missed deadlines for key deliverables (scorecard metrics, SharePoint and monthly
PEX metrics); (2) communications (surprised too often, emails too long and too many, lack of
followup and consistency); and (3) poor perception of her leadership by executives as not visible
or engaged, rushed/disorganized, and lack of followup. In addition, Kaveney expressed on the
review: “Must be much more open to coaching and criticism. I’ve seen nearly zero instances of
acceptance and responsibility for any mistakes or lack of delivery.”
6
On July 14, 2009, Kaveney placed Ma on a Performance Improvement Plan (“PIP”),
effective immediately. In addition to the shortcomings identified in the review, the PIP noted
that Ma had exhibited an unacceptable record of absenteeism. The PIP was scheduled to last
through September 30, 2009 and set forth an itemized list of performance objectives. Ma was to
provide a weekly status report, and Kaveney, Ma and Boyd would meet bi-weekly to discuss her
progress.
Ma did not accept and refused to sign the PIP. She explained that she did not regard it as
a help, and did not believe that it was a process to improve her performance. However, she
testified that she did everything she could to meet the objectives of the PIP and the assignments
given to her. Deposition at 294-295. On July 24, 2009, Ma sent a lengthy email which disputed
many of the criticisms set forth in the performance review and PIP. In this email, Ma claimed -for the first time -- that she believed she was being discriminated against. Ma Deposition at 288289.
Kaveney, Boyd and Ma held numerous meetings pursuant to the PIP throughout July,
August and September 2009, which Kaveney documented. In the August 5, 2009 meeting
memorandum, Kaveney noted that Ma’s tone was “completely inappropriate” and that she
“continued to communicate during this discussion that [she] did not see why [Kaveney] had an
issue with this particular number.” In August, Ma notified Kaveney that she was going to take a
three-week vacation. Kaveney viewed this request as an indication that Ma was not committed
to trying to improve her performance and told her that because there were only four weeks
remaining in the PIP, it was an inopportune time to take a three week vacation. Ma took the
vacation. Westinghouse decided to extend the PIP to October 15, 2009 to give Ma additional
time for completion. On September 15, 2009, Zuppinger sent an email to Kaveney regarding the
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Project Excellence Steering Committee to report that “the Core Team is frustrated” by the
perceived lack of organization and executive involvement to reinvigorate the project.
On October 28, 2009, Kaveney and Boyd terminated Ma’s employment at Westinghouse.
The Termination Letter stated that Ma’s conduct had caused the termination due to: (1) Work
Performance Not Meeting Expectations; and (2) the failure to treat other employees with dignity
and respect. The Termination Letter explained: “The tone and content of these communications
have at times been extremely disrespectful and borderline insubordinate. This type of behavior
is unacceptable and can not be tolerated.” The letter further stated that although management
had tried to help Ma succeed, “your behavior has generally been resistant to our efforts.” Ma
was replaced by Zuppinger, a non-Muslim male.
Standard of Review
Summary judgment must be granted when “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). The movant must identify those portions of the record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). To withstand summary judgment, the non-movant must show a genuine dispute of
material fact by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials.” FED. R. CIV. P. 56(c)(1)(A); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986). A dispute is “genuine” only if “there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby,
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Inc., 477 U.S. 242, 249 (1986). In resolving a summary judgment motion, the Court must draw
all reasonable inferences and construe the evidentiary record in the light most favorable to the
non-moving party. Id. at 255. Similarly, credibility determinations are the province of the jury,
not the Court. Id.
Legal Analysis
This is a “pretext” case, under the familiar McDonnell-Douglas burden-shifting analysis.
For the purpose of this motion, Westinghouse concedes that Ma has established a prima facie
case for gender discrimination, religious discrimination, and retaliation. Ma recognizes that
Westinghouse has articulated legitimate, non-discriminatory reasons for her discharge. Thus, the
burden shifts back to Ma to show that Westinghouse’s asserted reasons were pretextual. See
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003) (same pretext analysis
governs discrimination and retaliation claims).
The burden to establish pretext is a difficult one. Fuentes v. Perskie, 32 F.3d 759, 765
(3d Cir. 1994). A plaintiff must demonstrate such “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence.” Id. at 765.
Plaintiff may meet her burden by introducing evidence from which a fact finder could
either: (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an
invidious discriminatory or retaliatory reason was more likely than not a motivating or
determinative cause for the employer’s actions. Id. at 764. She may do so by “contradict[ing]
the core facts put forward by the employer as a legitimate reason for its decision.” Kautz v. MetPro Corp., 412 F.3d 463, 467 (3d Cir. 2005). If “the defendant proffers a bagful of legitimate
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reasons,” a plaintiff may cast “substantial doubt on a fair number of them,” such that it “may
impede the employer’s credibility seriously enough so that a factfinder may rationally disbelieve
the remaining proffered reasons.” Fuentes, 32 F.3d at 764 n. 7. Moreover, the Third Circuit has
instructed courts to review the record as a whole and “concentrate not on individual incidents,
but on the overall scenario.” Bray v. Marriott Hotels, 110 F.3d 986, 991 (3d Cir. 1997) (quoting
Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990)); see also Aman v. Cort
Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996). Thus, the Court must determine if
the totality of the evidence permits a reasonable factfinder to infer that Ma was terminated due to
discrimination or retaliation.
On the other hand, it is well-established that an employee’s mere disagreement with her
performance evaluation does not prove pretext. This Court will not second-guess the managerial
judgments of employers. Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 332 (3d Cir.
1995). In Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997), the United
States Court of Appeals for the Third Circuit explained that “[t]he question is not whether the
employer made the best, or even a sound, business decision; it is whether the real reason is
[discrimination].” In Keller, the court further explained that to survive the summary judgment
stage, a plaintiff must show that the employer’s decision “was so plainly wrong that it cannot
have been been the employer’s real reason.”
Moreover, a prior good evaluation cannot establish that a later unsatisfactory evaluation
is pretextual. See Turner v. Schering-Plough Corp., 901 F.2d 335, 343-44 (3d Cir. 1990). This
is particularly true when the evaluations are performed by different supervisors and similar
criticisms are set forth in both evaluations. See id; Accord Billet, 940 F.2d at 825-26. In this
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case, Easterling, Hydeman and Kaveney all agreed that the plans for Project Excellence had been
slow in coming and that Ma needed to start showing results to improve the program.
After a thorough review of the evidentiary record in this case, and with due deliberation,
the Court concludes that Ma has failed to demonstrate pretext. There is not the slightest hint of
discriminatory or retaliatory animus in this case. To the contrary, all of Kaveney’s criticisms are
objective and task-related. Kaveney and Ma may have had legitimate disagreements and
misunderstandings regarding deadlines and priorities. It appears that there may have been some
sort of power struggle between Ma and Kaveney regarding leadership of the Project Excellence
effort. Ma may also have achieved some of her objectives in a timely manner or had justifiable
reasons for some delays. The Court has construed all of the disputes regarding specific deadlines
and deliverables in the light most favorable to Ma. Nevertheless, it appears to be essentially
undisputed that Ma and Kaveney had a dysfunctional and adversarial relationship, and that
Kaveney had lost confidence in Ma’s ability to achieve results. Ma concedes that she did miss
some deadlines. It is also undisputed that Kaveney re-assigned some of Ma’s responsibilities to
other employees.
It is certainly essential for an executive such as Kaveney to be able to trust and have
confidence in the managers who report to him. The loss of such trust is a legitimate, nondiscriminatory reason for termination. See, e.g., Dowling v. Citizens Bank, 295 Fed. Appx. 499,
504 (3d Cir. 2008) (“Her supervisor's loss of confidence in her as a manager was neither
pretextual nor improper.”) The position of Westinghouse is not weak, implausible, inconsistent,
incoherent, or contradictory. To the contrary, all of Ma’s supervisors recognized that even
though she had good ideas, it was important that she deliver actual results.
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There is also strong evidence to support the assertion that Ma was fired due to a lack of
deference and respect towards Kaveney. The record reflects instances in which Ma: (1) failed to
invite Kaveney to a kickoff meeting; (2) disputed the accuracy or necessity of Kaveney’s
requests; (3) told him that he was “clearly wrong”; and (4) refused to apologize. Kaveney was
not required to tolerate such conduct from his subordinates. See Helfrich v. Lehigh Valley Hosp.,
2005 WL 670299 (E.D. Pa. 2005). In sum, there is no factual basis by which a reasonable jury
could find that the articulated concern of Westinghouse for insubordination/disrespect was
pretextual.
Moreover, the record is clear that Ma was not open to coaching and guidance from
Kaveney. The record is silent with respect to any instance in which Ma agreed with Kaveney
that she had erred, apologized, and took responsibility for her mistake(s). Ma did not view the
PIP as an effort to provide help and support. To the contrary, she refused to sign it and then took
a three-week vacation as the program was concluding, despite Kaveney’s warning that the timing
was inopportune. Westinghouse understandably interpreted the vacation as a sign that Ma was
not motivated to successfully complete the PIP and that she was resistant to that effort. On this
record, no reasonable jury could find that Westinghouse’s reasons for terminating Ma’s
employment were pretextual.5
Accordingly, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Document
No. 40) will be GRANTED.
An appropriate Order follows.
McVerry, J.
5
It is particularly difficult to understand how the conduct of Westinghouse could be a pretext for retaliation because
Ma was given a poor review and placed on a PIP before she complained of discrimination. Helfrich, 2005 WL
670299 at * 20.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MIMI MA,
Plaintiff,
v
WESTINGHOUSE ELECTRIC COMPANY,
LLC,
Defendant.
)
)
)
) 2:11-cv-970
)
)
)
)
)
ORDER OF COURT
AND NOW this 26th day of April, 2013, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED and DECREED that DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (Document No. 40) is GRANTED. The clerk shall docket this
case closed.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge
cc:
Jean E. Novak, Esquire
Email: jnovak@smgglaw.com
David A. Strassburger, Esquire
Email: dstrassburger@smgglaw.com
E. J. Strassburger, Esquire
Email: ejstrass@smgglaw.com
Shelly R. Pagac, Esquire
Email: srp@pietragallo.com
William Pietragallo , II, Esquire
Email: wp@pietragallo.com
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