NEUSTEIN v. PNC BANK, NA
MEMORANDUM OPINION granting 35 MOTION for Summary Judgment filed by PNC BANK, NA. Order to follow. Signed by Judge David S. Cercone on 7/25/17. (njt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PNC BANK, NA,
July 25, 2017
Plaintiff, Seth Neustein (“Neustein” or “Plaintiff”) filed a five (5) count Complaint
alleging: (1) religious discrimination and retaliation in violation of his rights under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII)”) (Counts I & II); (2) hostile
work environment and retaliation in violation of his rights under the Americans With Disabilities
Act of 1990, 42 U.S.C. §§12101, et seq. (the “ADA”) (Counts III & IV); and (3 violation of his
rights under the Pennsylvania Human Rights Act, 43 Pa. Cons. Stat. Ann. § 925 et seq. (the
“PHRA”), against Defendant, PNC Bank NA (“PNC” or “Defendant”). PNC has filed a motion
for summary judgment, Neustein has responded and the motion is now before the Court.
STATEMENT OF THE CASE
Neustein was hired by PNC on March 10, 2008, as a Network Services (“NWS”)
Analyst–Desktop Technologies in its Network Solutions–Technology Asset Management
department. Defendant’s Statement of Undisputed Material Facts (“Def. SUMF”) ¶ 1. As an
Analyst, Neustein was responsible for ensuring the proper operation of PNC’s desktop
technology systems. Id. Upon his hire, Neustein acknowledged that he had reviewed PNC’s
Code of Business Conduct and Ethics and understood that he was required to comply with the
rules, standards and values set forth therein. Def. SUMF ¶ 2. PNC also provided him with annual
training on the Code of Business Conduct and Ethics. Id. Neustein also acknowledged that he
would review, and comply with, the PNC Employee Manual. Id.
The PNC Employee Manual contains a separate Bias and Harassment Policy (“BHP”)
which provides that “PNC will not tolerate harassment, bias or other inappropriate conduct by a
manager, supervisor, employee, customer, vendor or visitor.” Def. SUMF ¶ 5. The purpose of the
BHP is to “ensure that PNC employees are provided a work environment free of bias, harassment
and other inappropriate conduct.” Id.
The BHP obligates employees who believe that they or others have been subject to
misconduct to report that misconduct. Def. SUMF ¶ 6. To ease the reporting of any misconduct,
the BHP provides employees with five alternatives for making a report: (1) to a Supervisor; (2)
to a Human Resources Business Partner; (3) to the Employee Relations Information Center
(“ERIC”); (4) to the Corporate Ethics Office; and/or (5) the Business Conduct and Ethics
Hotline. Id. Neustein was aware that PNC had a policy prohibiting discrimination, and knew that
there were individuals who he could contact to voice any concerns about discrimination,
including the ERIC. Def. SUMF ¶ 9.
Initially, Neustein reported to NWS Manager Arlene Cook (“Cook”). Def. SUMF ¶ 10.
Beginning in 2009, Cook reported to Manager I Technology David Byers (“Byers”), who
reported to Manager II Technology Sandra Barnhill (“Barnhill”). Id. In or around early 2010,
Neustein began reporting directly to Byers, who continued to report to Barnhill. Id.
On October 6, 2009, Neustein called the ERIC to report that his managers were giving
him a hard time about taking days off, including for the Jewish holiday of Yom Kippur and that
he felt that he was being discriminated against based on his religion, Judaism. PNC Appendix
(“PNC App”) Ex. A, Neustein Depo. pp. 186-187. PNC assigned Senior Employee Relations
Investigator Jodie Fine-Sheriff (“Fine-Sheriff”) to investigate Neustein’s concerns of religious
discrimination. Def. SUMF ¶ 12; PNC App Ex. D, Fine-Sheriff Declaration (“F-S Decl.”) ¶ 5.
Based on her investigation, Fine-Sheriff determined that Cook did not discriminate against
Neustein, that Neustein was granted all the time off that he requested, and that his claims of
religious discrimination were unfounded. F-S Decl. ¶ 8.
On April 2, 2010, Neustein again called the ERIC to report that Byers and Barnhill would
not allow him to enter time off for Passover as time off for religious observation, but wanted him
to enter it as vacation time. Def. SUMF ¶ 14. Byers and Barnhill reached out to the ERIC for
guidance, and were told that Neustein should record the time off as vacation time. Id.
On June 23, 2010, Neustein called off sick and visited his primary care physician, Dr.
Joseph Trompeter (“Dr. Trompeter”), complaining of congestion and a cough. Def. SUMF ¶¶ 24
& 25. Though Neustein discussed with Dr. Trompeter the fact that mold had been found in his
home, which Dr. Trompeter thought might have contributed to his condition, Dr. Trompeter
diagnosed Neustein with whooping cough. Def. SUMF ¶ 25. When Neustein returned to work
the next day, he told Byers that he had a potential fungal infection in his lungs. Def. SUMF ¶ 26.
In or around July 2010, PNC informed Neustein that he was being moved from his office
in downtown Pittsburgh, to Allegheny Center, located on the North side of Pittsburgh. Def.
SUMF ¶ 34. Neustein alleges that when Barnhill informed of the move, she accused him of
faking his medical condition, called him an anti-Semitic name, and told him that she was going
to isolate him and move him “somewhere away from everybody else.” Def. SUMF ¶ 35. Though
Barnhill and Byers contend they made the decision to reassign Neustein to Allegheny Center due
to work volume, and because his supervisor worked in Allegheny Center, Neustein contends that
he was never told the reasons he was being moved. Def. SUMF ¶ 36; Plaintiff’s Response to
Concise Statement of Material Fact (“Pl. Resp.”) ¶ 36. On July 13, 2010, Neustein called the
ERIC to report that Byers and Barnhill were violating his medical restrictions by requiring him
to move to a different PNC building1. Def. SUMF ¶ 41. PNC assigned Senior Employee
Relations Investigator Jean Olenak (“Olenak”) to investigate Neustein’s concerns. Id.
Neustein indicated that his concern regarding his move to Allegheny Center was that he
would be required to regularly walk back and forth between Allegheny Center and PNC’s
locations in downtown Pittsburgh. Def. SUMF ¶ 38. Such requirement would violate his medical
restrictions. Id. In that regard, Neustein submitted documentation to PNC on July 20, 2010, that
indicated that he should not be in dusty areas, crawling, lifting more than 6 to 8 pounds or
walking more than 150 yards. Id. Barnhill discussed Neustein’s medical restrictions with
Employee Relations, and it was determined that they could accommodate those restrictions by
having him work at Allegheny Center. Def. SUMF ¶ 39.
As part of her investigation, Olenak spoke with Neustein, who alleged that Barnhill had
made anti-Semitic comments to him. Def. SUMF ¶ 42. Specifically, Neustein alleged that
Barnhill said: “You dirty Jew I know you’re faking this and you’ll pay for this.” Def. SUMF ¶
43. Neustein further alleged that after he requested time off for Passover, Barnhill said, “Look
Neustein also complained that his medical restrictions were being violated because he was
being required to pack up his office for the move. Pl. Resp. ¶ 41.
here you uppity Jew, I can discipline you for whatever I want. You do not get days for
Passover.” Id. Barnhill denied making such statements. Def. SUMF ¶ 44.
As part of her investigation, Olenak spoke to Byers, as well as other employees who may
have heard comments by Barnhill, however, no one corroborated Neustein’s allegations. Def.
SUMF ¶ 49; Pl. Resp. ¶ 49. Olenak found that the allegations made by Neustein were
unfounded. Olenak, however, specifically stated, “I was having trouble that this is something
Seth would make up. I told Seth I believe the truth is in the middle,” and that she could defend a
termination of neither Barnhill nor Neustein. Pl. Resp. ¶ 50.
On or about July 26, 2010, Neustein became a Technical Project Manager, managing
technology related projects for PNC. Def. SUMF ¶ 51. During the last quarter of 2010, PNC
allowed Neustein to begin working from home because of his medical condition. Def. SUMF ¶
In or around May 2013, Neustein began reporting to Manager I Technology Cheryl
Klippa (“Klippa”). Def. SUMF ¶ 54. Klippa oversaw a team that included Neustein, Senior
Software Engineer, Nathaniel Snyder (“Snyder”), Business Systems Analyst, Erika Trageser
(“Trageser”), and Quality Analyst, Karen Scansaroli (“Scansaroli”). Def. SUMF ¶ 55. Neustein
and Snyder were college friends, and Neustein helped Snyder get his job with PNC. Def. SUMF
¶ 56. Moreover, Neustein was dating Snyder’s sister at that time. Id.
In or around the summer of 2013, Neustein contends that Klippa ordered him to stop
attending physical therapy because she needed him to work “basically nonstop.” Def. SUMF ¶
60. Neustein agreed to stop attending physical therapy, but advised Klippa that it had to be
temporary because it would take a toll on his health. Def. SUMF ¶ 61; Pl. Resp. ¶ 61. Once
Neustein began attending physical therapy again, he alleges that Klippa continuously tried to
prevent him from attending physical therapy or doctors’ appointments. Def. SUMF ¶ 63.
Neustein complained to PNC Senior Employee Relations Investigator, Lenette Seibel (“Seibel”),
about Klippa’s actions. Pl. Resp. ¶ 64.
In August 2013, during a conference call with Klippa and Snyder, Neustein told Klippa
that he needed to take two days off in September for the Jewish holiday of Rosh Hashanah. Def.
SUMF ¶ 65. Klippa, however, was scheduling an installation to take place during those days,
and insisted that Neustein work on Rosh Hashanah. Def. SUMF ¶ 66. Klippa told Neustein that
even though he was scheduled for vacation during Rosh Hashanah, he had to be available if any
work issue arose. Pl. Resp. ¶ 66. Neustein contends that during this conference call, Klippa
referred to Rosh Hashanah as a “supposed” or “made-up” religious holiday, and threatened to
terminate Neustein. Def. SUMF ¶ 66. Neustein took off two (2) days for Rosh Hashanah in
September of 2013. Def. SUMF ¶ 67.
The August 2013 conference call was the first time that Klippa learned that Neustein was
Jewish Plaintiff’s Concise Statement of Material Facts (“Pl. CSMF”) ¶ 123. Neustein alleges that
after Klippa found out that he was Jewish, she began calling him anti-Semitic or derogatory
names, harassed him about his religion, repeatedly threatened his job, and asked him to commit
fraud by falsifying documents and changing data. Def. SUMF ¶¶ 72 & 74. Neustein further
contends that Klippa made him work 16-20 hour days, 7 days a week, 365 days a year, and told
Neustein that “Jews do not get work life balance.” Def. SUMF ¶ 73; Pl. CSMF ¶ 124. Neustein
did not call the ERIC or reach out to anyone in PNC Employee Relations or Human Resources to
report Klippa’s conduct. Def. SUMF ¶ 78.
On January 14, 2014, Neustein took an unscheduled day off from work because of a
medical problem that required him to go to the hospital. Def. SUMF ¶ 79. That afternoon, Klippa
e-mailed Neustein, stating that she “did not see [him] online or attending any meetings” that day,
and “did not receive any communication from [him] regarding an absence.” Def. SUMF ¶ 80.
Notably, Neustein’s girlfriend also took a preapproved day off on January 14, 2014, and Snyder
told Klippa that Neustein may be spending the day with his sister. Def. SUMF ¶ 81.
The next morning, on January 15, 2014, Neustein participated in a conference call with
Klippa, Snyder, Trageser, Scansaroli and a third-party contractor. Def. SUMF ¶ 82. According to
PNC’s records, Neustein connected to the conference call at 8:31 a.m. and disconnected from the
conference call at 8:42 a.m. Id. Neustein alleges that Klippa asked him to stay on the line after
the other participants hung up, and then demanded a detailed accounting of his time. Def. SUMF
¶ 83. When Neustein refused, he alleges that Klippa stated to him, “Fuck you, you Jew. I am
eliminating your position. You think you can just take time off for your made-up holidays
whenever you want. You’re going to get what is coming to you.” Id.
At 8:45 a.m., Neustein and Klippa exchanged instant messages regarding Neustein’s
absence on the 14th. Specifically, Klippa sent a message asking, “Seth, Did you read my email
about absence yesterday?” Def. SUMF ¶ 84. Neustein stated that he “was unexpectedly taken to
the hospital and was there until late,” and he did not have his cell phone with him. Def. SUMF ¶
85. With regard to Neustein’s absence, Snyder told Neustein that Klippa said that there might be
some “unpleasant things” that she needed to do in reference to Neustein. Def. SUMF ¶ 86. That
same day, on January 15, 2014, Neustein called the ERIC to complain that Klippa had
discriminated against him based on his religion and disability. Def. SUMF ¶ 87.
PNC assigned Seibel to investigate Neustein’s concerns. Def. SUMF ¶ 89. Seibel
explained to Neustein that her investigation was confidential and that he needed to be honest
during the investigation, as required under the Code of Ethics. Def. SUMF ¶ 91. Neustein told
Seibel that after a staff meeting on January 15, 2014, Klippa told Neustein to stay on the line
while the others hung up, then proceeded to demand certain information from him, threatened his
job, and made anti-Semitic remarks. Def. SUMF ¶ 92. Seibel also spoke with Klippa as part of
her investigation, and she denied asking Neustein to stay on the line after the conference call on
January 15, 2014, and vehemently denied Neustein’s allegations that she had made anti-Semitic
remarks. Def. SUMF ¶ 94. Snyder told Seibel that he never heard Klippa call Neustein names or
mock Neustein because of his medical conditions. Def. SUMF ¶ 95.
As part of her investigation, Seibel also obtained records from PNC’s audiobridge
department regarding the conference call on January 15, 2014, in order to determine when the
participants in the conference call had logged on and off of the conference line. Def. SUMF ¶ 97.
These records showed that Neustein connected to the conference call at 8:31 a.m. and
disconnected at 8:42 a.m., at the exact same time that Scansaroli, Trageser and Snyder
disconnected. Def. SUMF ¶ 98. The records further showed that Klippa stayed on the conference
call with the contractor, Andrew Spry (“Spry”), until 8:44 a.m. Id. Seibel determined that these
telephone records directly contradicted Neustein’s claim that he and Klippa had stayed on the
conference call after all of the other participants had hung up. Def. SUMF ¶ 99. Seibel was
unable to find any independent evidence that Klippa made anti-Semitic comments or mocked
Neustein’s disability. Def. SUMF ¶¶ 96, 100 & 101.
It is standard practice for PNC under its Fidelity Bonding Policy (“Bonding Policy”) to
place an employee on paid administrative leave if there are concerns that the employee has
engaged in a dishonest act, including dishonesty during an internal investigation. Def. SUMF ¶
102. On February 28, 2014, Siebel placed Neustein on paid administrative leave while she
completed her investigation. Id. On or about January 30, 2014, while Seibel’s investigation was
still pending, Neustein filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) alleging that he had been discriminated against based on his religion and
disability. Def. SUMF ¶ 105.
Seibel determined at the conclusion of her investigation that Neustein was dishonest in
his allegations against Klippa, and that his allegations were not made in good faith. Def. SUMF ¶
Under PNC’s Bonding Policy, employees are expected to be truthful and honest at all
times and, if PNC has a reasonable belief that an employee has engaged in a dishonest act,
coverage under PNC’s fidelity bond is suspended, and the employee cannot continue working at
PNC until coverage is reinstated. Def. SUMF ¶ 106. PNC’s Bonding Policy lists specific
examples of dishonest acts that may lead to the suspension of an employee’s bond coverage,
including misrepresentation or lying during an investigation. Def. SUMF ¶ 107.
Seibel determined that Neustein had violated PNC’s Code of Ethics, and was no longer
eligible for employment under PNC’s Bonding Policy. Def. SUMF ¶ 110. Based on her
investigation, Seibel recommended to Klippa’s supervisor, Director of Technology Janice Nissel
(“Nissel”) that Neustein’s employment be terminated. Def. SUMF ¶¶ 111 & 112. Nissel agreed
with Seibel’s termination recommendation. . Def. SUMF ¶ 112. On April 23, 2014, PNC
terminated Neustein’s employment, effective April 24, 2014. Def. SUMF ¶ 113.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall
be granted when there are no genuine issues of material fact in dispute and the movant is entitled
to judgment as a matter of law. To support denial of summary judgment, an issue of fact in
dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could
base a verdict for the non-moving party and one which is essential to establishing the claim.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary
judgment, the court is not permitted to weigh the evidence or to make credibility determinations,
but is limited to deciding whether there are any disputed issues and, if there are, whether they are
both genuine and material. Id. The court’s consideration of the facts must be in the light most
favorable to the party opposing summary judgment and all reasonable inferences from the facts
must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West
Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358,
361 (3d Cir. 1987).
When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of
the Rule, the nonmoving party must come forward with “specific facts showing that there is a
genuine issue for trial.” FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on
unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a
summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond
Aby pointing to sufficient cognizable evidence to create material issues of fact concerning every
element as to which the non-moving party will bear the burden of proof at trial.@ Simpson v. Kay
Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v.
Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).
Neustein brings a claim of discrimination and retaliation under Title VII, the ADA and
the PHRA2. Title VII prohibits an employer from discriminating against an individual based on
race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1). The ADA provides
that “no covered entity shall discriminate against a qualified individual with a disability because
of the disability of such individual 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).
If the plaintiff has put forth direct evidence of discrimination, the court must apply the
theory set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), also referred to as the
“mixed motive” theory. Under Price Waterhouse, if a plaintiff “offers ‘direct evidence’ of
unlawful discrimination . . . the plaintiff need only show that the unlawful motive was a
substantial motivating factor in [the employer’s] decision” to take an adverse employment action
against the plaintiff. Miller v. CIGNA Corp., 47 F.3d 586, 594 (3d Cir. 1995) (discussing Price
Waterhouse concurrence by Justice O'Connor); see also Shellenberger v. Summit Bancorp, Inc.,
318 F.3d 183, 187 (3d Cir. 2003) (citation omitted). If the plaintiff satisfies this burden, “[b]oth
the burden of production and the risk of non-persuasion are shifted to the defendant who . . .
must persuade the factfinder that even if the discrimination was a motivating factor in the
adverse employment decision, it would have made the same employment decision regardless of
its discriminatory animus.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 n.5 (3d Cir. 2016)
There is no need to differentiate between Neustein’s Federal discrimination claims and
PHRA claims because, for our purposes, the same analysis is used for each. See, e.g., Simpson v.
Kay Jewelers, 142 F.3d at 643-644 & n.4; Jones v. School District of Philadelphia, 198 F.3d
303, 410-411 (3d Cir. 1999); Fairfield Township Volunteer Fire Co. No. 1 v. Commonwealth,
609 A.2d 804, 805 (Pa. 1992).
(quoting Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994)). See also Watson v. Se.
Penn. Trans. Auth., 207 F.3d 207, 215 (3d Cir. 2000) (citing Price Waterhouse v. Hopkins, 490
U.S. at 244-245).
If, however, the plaintiff has put forth circumstantial evidence of discrimination, the court
uses a pretext theory, which incorporates the burden-shifting analysis of McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973) (the “McDonnell Douglas analysis”). Under the
McDonnell Douglas analysis, once the employee establishes a prima facie case of
discrimination, the burden of production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the employer’s adverse employment decision. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802. If the employer makes that showing, the burden of production
shifts once again to the employee to establish that the employer’s proffered justification for the
adverse action is pretextual. Tex. Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 254-255
(1981). Throughout this burden-shifting exercise, the burden of persuasion remains on the
employee. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n.4 (3d Cir. 1995) (citing
Tex. Dep’t of Comm. Affairs v. Burdine, 450 U.S. at 253).
Neustein contends that he has offered “direct evidence” of discrimination. Direct
evidence is overt or explicit evidence that is so revealing of a discriminatory animus that no
presumptions or inferences are needed. See Bullock v. Children's Hosp. of Phila., 71 F. Supp. 2d
482, 485 (E.D. Pa. 1999) ; (citing Armbruster v. Unisys Corp., 32 F.3d 768, 778-779, 782 (3d
Cir. 1994) for the proposition that direct evidence is analogous to the “proverbial ‘smoking
gun’”); see also Hankins v. City of Phila., 189 F.3d 353, 365 (3d Cir. 1999) (finding comment to
African American candidate that position was “reserved for the gay, white community” a
“quintessential example of direct evidence”), aff'd en banc, 216 F.3d 1076 (2000).
A plaintiff attempting to prove discrimination with direct evidence faces a “high hurdle.”
Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1999). The direct evidence “must
demonstrate that decision makers placed substantial negative reliance on an illegitimate criterion
in reaching their decision.” See Price Waterhouse v. Hopkins, 490 U.S. at 277 (O’Connor, J.,
concurring); see also Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 786 (3d Cir. 2007).
Moreover, derogatory comments or stray remarks in the workplace that are unrelated to
employment decisions, even when uttered by decision makers, do not constitute direct evidence
of discrimination. Price Waterhouse v. Hopkins, 490 U.S. at 277; see also Fuentes v. Perskie, 32
F.3d 759, 767 (3d Cir.1994) (“Stray remarks by non-decisionmakers or by decisionmakers
unrelated to the decision process are rarely given great weight, particularly if they were made
temporally remote from the date of decision”) (internal quotation and citation omitted)).
Neustein alleges that after Klippa found out that he was Jewish, she began calling him
anti-Semitic or derogatory names, harassed him about his religion, repeatedly threatened his job,
and asked him to commit fraud by falsifying documents and changing data. Def. SUMF ¶¶ 72 &
74. With regard to the anti-Semitic comments, Neustein specifically alleges that Klippa told him
that “Jews do not get work life balance,” and, after Klippa asked him to stay on the line a
conference call, allegedly demanded a detailed accounting of his time and when Neustein
refused, she said, “Fuck you, you Jew. I am eliminating your position. You think you can just
take time off for your made-up holidays whenever you want. You’re going to get what is coming
to you.” Def. SUMF ¶ 83.
Klippa vehemently denied Neustein’s allegations that she had made anti-Semitic remarks.
Def. SUMF ¶ 94. Moreover, PNC’S telephone records from the January 15, 2014, conference
call contradicted Neustein’s claim that Klippa asked him to stay on the conference call after the
other participants hung up and made anti-Semitic comments. These records showed that
Neustein connected to the conference call at 8:31 a.m. and disconnected at 8:42 a.m., at the exact
same time that Scansaroli, Trageser and Snyder disconnected. Def. SUMF ¶ 98. The records
further showed that Klippa stayed on the conference call with a contractor until 8:44 a.m. Id.
Neustein also identified Snyder as a witness to Klippa’s alleged discriminatory conduct, but
Snyder denied ever hearing Klippa call Neustein any anti-Semitic names, refer to Jewish
holidays as made up holidays, or mock Neustein because of his disability. Snyder Depo. pp. 3940. Finally, not one of the thirteen employees who Neustein identified as witnesses to Klippa’s
alleged conduct substantiated his claims.
Notwithstanding the lack of objective evidence supporting Neustein’s claim that Klippa
manifested a discriminatory animus toward him, Neustein fails to show that, if such remarks
were in fact made by Klippa, her alleged remarks were related to PNC’s decision to terminate
him. The evidence clearly establishes that after a comprehensive investigation3, initiated upon
Neustein’s complaint, Seibel determined that Neustein was dishonest in his allegations against
Klippa, and that his allegations were not made in good faith. Seibel determined that Neustein
had violated PNC’s Code of Ethics, and was no longer eligible for employment under PNC’s
Bonding Policy. Based on her investigation, Seibel recommended to Klippa’s supervisor, Janice
Nissel that Neustein’s employment be terminated. There is no evidence that Neustein was
terminated based upon his religion.
Neustein also fails in his attempt to establish the “cat’s paw” theory to impute Klippa’s
alleged discriminatory animus to her employer, PNC. Under the “cat’s paw” theory, an employer
This Court is unable to find any evidence of Neustein’s contention that Seibel was
predisposed to believe Klippa and ignore evidence substantiating his claims.
is deemed at fault if one of its agents “committed an action based on discriminatory animus that
was intended to cause, and did in fact cause, an adverse employment decision.” Staub v. Proctor
Hospital, 562 U.S. 411, 422 (2011); see also Jones v. S.E. Pa. Transp. Auth., 796 F.3d 323, 330
(3d Cir. 2015) (“[P]roximate cause is required in cat’s paw cases . . . “). Proximate cause
“requires ‘some direct relation between the injury asserted and the injurious conduct alleged’ and
excludes links that are ‘remote, purely contingent, or indirect.’” Jones v. S.E. Pa. Transp. Auth,
796 F.3d at 330 (quoting Staub v. Proctor Hospital, 562 U.S. at 419). The Court in Jones further
stated, “proximate cause will not exist when the employer does not rely on the ‘supervisor’s
biased report’ in taking the ultimate adverse action.” Id. at 331 (quoting Staub v. Proctor
Hospital, 562 U.S. at 421).
As set forth above, Neustein lacks any evidence that the alleged discriminatory animus by
Klippa was the proximate cause of his termination. Seibel found Neustein was dishonest based
upon objective evidence after a comprehensive investigation. Accordingly, Neustein has failed
to show direct evidence of discrimination based upon either religion or disability.
Under the McDonnell Douglas analysis, Neustein bears the burden of establishing a
prima facie case of religious discrimination. Scheidemantle v. Slippery Rock Univ. State Sys. of
Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006); Atkinson v. LaFayette College, 460 F.3d 447,
454 (3d Cir. 2006). In order to state a prima facie case of Title VII discrimination based on his
religion, Neustein must establish that (1) he is a member of a protected class; (2) that he suffered
some form of adverse employment action; and (3) “this action occurred under circumstances
giving rise to an inference of unlawful discrimination that might occur when nonmembers of the
protected class are treated differently.” Miller v. Keystone Blind Ass’n/Tpm, 547 F. App’x 100,
102 (3d Cir. 2013). See also See Goosby v. Johnson & Johnson Med., 228 F.3d 313, 318 (3d
Cir. 2000); Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999).
To establish a prima facie case of disability discrimination under the ADA, Neustein
must show “(1) that he is disabled within the meaning of the ADA, (2) that he is otherwise
qualified for the job, with or without reasonable accommodations, and (3) that he was subjected
to an adverse employment decision as a result of discrimination.” Tirk v. Dubrook, Inc., 673 Fed.
Appx. 238, 241 (3d Cir. Pa. Dec. 27, 2016) (quoting Sulima v. Tobyhanna Army Depot, 602 F.3d
177, 185 (3d Cir. 2010)). The third element requires a plaintiff to show causation. See, e.g., New
Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 301 (3d Cir. 2007) (“[T]o make
out a claim under the ADA, the plaintiff need only show that intentional discrimination was the
but for cause of the allegedly discriminatory action.”).
Neustein is unable to establish a prima facie case of either religious or disability
discrimination. With respect to his religious discrimination claim, Neustein cannot show that he
was terminated under circumstances giving rise to an inference of religious discrimination
because there is no evidence that nonmembers of his protected class were treated any differently.
He was terminated because Seibel determined that he violated PNC’s Code of Ethics, and was no
longer eligible for employment under PNC’s Bonding Policy. See Def. SUMF ¶¶ 110 & 111.
Moreover, Neustein fails to direct this Court to evidence that similarly situated employees
outside of his protected class engaged in similar conduct, but received more favorable treatment.
With respect to his disability discrimination claim, Neustein cannot establish the third
element, a causal connection between his termination and his alleged disability. Proximate cause
“requires ‘some direct relation between the injury asserted and the injurious conduct alleged’ and
excludes links that are ‘remote, purely contingent, or indirect.’” Jones v. S.E. Pa. Transp. Auth,
796 F.3d at 330 (quoting Staub v. Proctor Hospital, 562 U.S. at 419). Clearly, Neustein’s
termination was not related to his disability. After an investigation, initiated by Neustein, Seibel
determined that Neustein had violated PNC’s Code of Ethics, and he was terminated. Moreover,
PNC accommodated Neustein’s disability. During the last quarter of 2010, PNC allowed
Neustein to begin working from home because of his medical condition, and he continued to
work from home until his termination in April of 2014. Def. SUMF ¶ 52.
Neustein, therefore, has failed to establish prima facie claim with respect to his
allegations of discrimination. Neustein also alleges claims of retaliation. To establish a prima
facie case of retaliation, Neustein must demonstrate that: (1) he engaged in a protected employee
activity; (2) the employer took an adverse employment action after or contemporaneous with the
protected activity; and (3) a causal link exists between the protected activity and the adverse
action. See Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 286 (3d Cir.
2001); Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1999). A causal link
between protected activity and adverse action may be inferred from an unusually suggestive
temporal proximity between the two, an intervening pattern of antagonism following the
protected conduct, or the proffered evidence examined as a whole. Id.
Neustein’s retaliation claims are unavailing because he cannot establish a causal
connection between his internal complaints on January 15, 2014, or the filing of his Charge of
Discrimination on January 30, 2014, and his termination in April 2014. After his complaint to the
ERIC in January of 2014, PNC conducted a comprehensive investigation of his allegations.
Those allegations were found to be false4. Temporal proximity provides an evidentiary basis
Similar allegations were made against a supervisor in 2011. PNC investigated the
allegations were determined to be “unfounded.” Def. SUMF ¶¶ 42, 43 & 50.
from which an inference of causation can be drawn. See Carvalho-Grevious v. Del. State Univ.,
851 F.3d 249, 260 (3d Cir. Del. Mar. 21, 2017). The Third Circuit has held that, on its own, an
intervening temporal period of two days may raise the inference of causation but that a period of
two months cannot. See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989); Williams v. Phila.
Hous. Auth. Police Dep’t, 380 F.3d 751, 759-60 (3d Cir. 2004). Here, Neustein’s complaints
were made three (3) months prior to his termination, thus failing to raise an inference of
causation. Further, Neustein fails to establish an intervening pattern of antagonism following the
alleged protected conduct. Accordingly Neustein’s retaliation claim fails.
Notwithstanding, Neustein’s failure to establish a prima facie case of religious or
disability discrimination and/or retaliation, this Court will proceed with the McDonnell Douglas
analysis, and shift the burden of production to PNC to articulate a legitimate, nondiscriminatory
reason for terminating him. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.
1997); Simpson v. Kay Jewelers, 142 F.3d at 644 n.5. 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. Tomasso v. Boeing Co., 445
F.3d 702, 706 (3d Cir. 2006) (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)); see
also Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012) (describing
this step as a “minimal burden”).
Here, PNC has established a legitimate, nondiscriminatory reason for Neustein’s
termination. The burden, therefore, shifts back to Neustein to show that PNC’s articulated
reasons for his termination are merely a pretext for discrimination. An employee may
demonstrate that his employer’s legitimate nondiscriminatory reason is pretextual by submitting
evidence that allows a factfinder to either 1) disbelieve or discredit the employer’s justification;
or 2) believe discrimination was more likely than not a “but for” cause of the adverse
employment action. Abels v. Dish Network Serv., LLC, 507 F. App’x 179, 183 (3d Cir. 2012)
(citing Fuentes v. Perskie, 32 F.3d at 764). See also Gross v. FBL Fin. Servs., 557 U.S. 167, 177178 (2009). Evidence undermining an employer’s proffered legitimate reasons must be
sufficient to “support an inference that the employer did not act for its stated reasons.” Sempier v.
Johnson & Higgins, 45 F.3d 724, 731 (3d Cir. 1995).
In order to discredit PNC’s proffered justification under the first prong of Fuentes,
Neustein must present evidence demonstrating “such weaknesses, implausibilities,
inconsistencies, incoherencies (sic), or contradictions” in the proffered reasons “that a reasonable
factfinder could rationally find them unworthy of credence,” and ultimately infer that PNC did
not act for the asserted nondiscriminatory reasons. Fuentes v. Perskie, 32 F.3d at 765. If
Neustein’s evidence rebutting PNC’s proffered reason permits a factfinder to conclude that such
reason (or reasons) was either a “post hoc fabrication” or otherwise did not actually prompt the
employment action, then summary judgment is inappropriate. Fuentes v. Perskie, 32 F.3d at 764.
Alternatively, Neustein must show that religious or disability discrimination was a “butfor” cause of PNC’s decision to terminate him. To meet this burden, Neustein “cannot simply
show that [PNC’s] decision was wrong or mistaken.” Fuentes v. Perskie, 32 F.3d at 765. The
question is whether PNC was motivated by a discriminatory animus, not whether it was wise,
shrewd, prudent, or competent. See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509,
531, 533 (3d Cir. 1992); Villanueva v. Wellesley College, 930 F.2d 124, 131 (1st Cir.), cert.
denied, 502 U.S. 861 (1991). See also Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332
(3d Cir. 1995) (“[A]n employer may have any reason or no reason for discharging an employee
so long as it is not a discriminatory reason.”).
Again, Neustein is unable to direct this Court to any evidence that discredits PNC’s
proffered legitimate, nondiscriminatory reason for his termination. PNC thoroughly investigated
Neustein’s allegations against Klippa, and reasonably determined that he was dishonest in
making those allegations. Moreover, Neustein cannot show that PNC subjected him to unlawful
discrimination in the past, treated similarly-situated employees more favorably, or discriminated
against other members of his protected class.
Neustein, therefore, fails to make a showing of pretext as he is unable point to evidence
in the record which would allow a rationale factfinder to “believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause” of PNC’s
adverse employment action, Burton v. Teleflex, Inc., 707 F.3d 417, 427 (3d Cir. 2013), or to
“believe discrimination was more likely than not a ‘but for’ cause of the adverse employment
action.” Abels v. DISH Network Serv., LLC, 507 F. App’x at 183; see also Simpson v. Kay
Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998) (the plaintiff must “point to
evidence with sufficient probative force that a factfinder could conclude by a preponderance of
the evidence that age was a motivating or determinative factor in the employment decision.”).
Accordingly, the Court finds that Neustein’s religious and disability discrimination claims under
Title VII, the ADA and PHRA fail as a matter of law.
Finally, Neustein alleges a hostile work environment. To prove a hostile work
environment claim, Neustein must show, inter alia, that his workplace was “permeated with
discriminatory intimidation, ridicule, and insult, sufficiently severe or pervasive to alter the
conditions of his employment and create an abusive working environment.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002). Factors which may indicate a hostile
work environment include: “the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993). “[O]ffhanded comments and isolated incidents (unless extremely
serious) are not sufficient to sustain a hostile work environment claim. Rather, the conduct must
be extreme to amount to a change in the terms and conditions of employment.” Caver v. City of
Trenton, 420 F.3d 243, 262 (3d Cir. 2005). In assessing the severity of alleged discriminatory
treatment, “we consider the totality of the circumstances,” and our analysis “must concentrate
not on individual incidents, but on the overall scenario.” Id. at 262-263.
The incidents described by Neustein, which have little, if any, objective support in the
record, do not rise to the level necessary to sustain a hostile work environment claim. Neustein’s
hostile work environment claim, therefore, fails as a matter of law.
The Court finds that there are no material facts in dispute, Neustein is unable to show that
that PNC violated his rights under Title VII, the ADA or the PHRA. Accordingly, PNC’s motion
for summary judgment shall be granted. An appropriate order will follow.
s/ DAVID STEWART CERCONE
David Stewart Cercone
United States District Judge
Lawrence R. Chaban, Esquire
Gary J. Lieberman, Esquire
Heather A. Pierce, Esquire
Emilie R. Hammerstein, Esquire
Morgan J. Matson, Esquire
(Via CM/ECF Electronic Mail)
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