GETHERS v. PNC BANK
Filing
126
MEMORANDUM OPINION indicating that, from reasons stated more fully within, regarding Plaintiff Jalaine Gethers' Motion Seeking Relief from Judgment Pursuant to Federal Rules of Civil Procedure 60(b)(2), 60(b)(3) and 60(d)(3) (Docket No. 93 , Plaintiff has not met that high burden and her motion seeking relief from judgment under Rule 60(b)(2), 60(b)(3) and 60(d)(3) is denied. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 5/22/19. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JALAINE GETHERS,
Plaintiff,
v.
PNC BANK,
Defendant.
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Civil Action No. 15-1559
Judge Nora Barry Fischer
MEMORANDUM OPINION
I.
Introduction
Pending before the Court is Plaintiff Jalaine Gethers’ Motion Seeking Relief from
Judgment Pursuant to Federal Rules of Civil Procedure 60(b)(2), 60(b)(3) and 60(d)(3) (Docket
No. 93). Defendant PNC Bank filed a Response opposing Plaintiff’s motion and a request for an
award of attorneys’ fees incurred in defending the motion, Plaintiff replied to same and Defendant
filed its sur-reply brief. (Docket Nos. 97, 99, 103). On November 27, 2018, the Court held oral
argument on whether Plaintiff is entitled to a hearing on her motion. (Docket No. 105). After
reviewing the parties’ briefs and the transcript of the oral argument, along with the declarations
and documents subsequently filed by PNC, (Docket Nos. 122, 123, 124, 125), the Court finds that
Plaintiff is not entitled to relief from judgment under any theory. Accordingly, Plaintiff’s motion
is denied, as is PNC’s request for an award of attorneys’ fees.
II.
Procedural and Factual Background
On December 1, 2015, Plaintiff commenced this action pro se, asserting claims against
PNC for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964.
(Docket No. 3). Plaintiff, who is African-American, alleged that PNC discriminated against her
1
by terminating her on the basis of race and retaliating against her because she lodged an internal
complaint that a supervisor, Duane Fahrion, denied her a promotion because of her race. PNC
moved for summary judgment with respect to both of Plaintiff’s claims. (Docket Nos. 42-46).
On May 9, 2017, this Court issued a Memorandum Opinion and Order granting PNC’s
motion and entering judgment in favor of PNC and against Plaintiff. (Docket Nos. 64, 65). In
summary, PNC Senior Employee Relations Investigator Jean Olenak found that Plaintiff processed
at least nine return transactions for another employee, Rosalind Jackson, between May and July
2013 without following proper company procedures, and consequently both had violated PNC’s
code of ethics. (Docket No. 64 at 7). Olenak recommended to Plaintiff’s direct supervisor, Amy
Yates,1 that she and Jackson be terminated, and Yates agreed. (Id. at 5, 9).
In granting summary judgment, the Court held that Plaintiff failed to establish a prima
facie case of unlawful termination, as she cited no evidence indicating that PNC treated a similarly
situated employee better than it treated her because of race. (Docket No. 64 at 22). In addition,
the Court held that Plaintiff failed to establish a prima facie case of retaliation because there was
no causal relationship between Plaintiff’s complaint against Fahrion and her termination, or PNC’s
alleged resistance to her receipt of unemployment benefits, and because her contention that
Fahrion was “very cold” to her did not constitute a materially adverse employment action. (Id. at
28-29). As the Court explained, “[e]ven assuming that Fahrion knew that [Plaintiff] complained
about him . . . and then talked to her less, [she] is unable to state a prima facie retaliation claim.”
(Id. at 29). The Court also concluded as to both claims that PNC had a legitimate, nondiscriminatory reason for terminating Plaintiff because she violated PNC’s code of ethics by
circumventing the procedures for processing Jackson’s return transactions. (Id. at 7, 22, 30).
From February 2010, until February 2013, Fahrion was Plaintiff’s direct supervisor. (Docket No. 64 at 5).
Beginning in February, 2013, Yates became Plaintiff’s direct supervisor. (Id.).
1
2
On June 6, 2017, Plaintiff’s current counsel entered an appearance and filed a motion for
reconsideration of the Court’s order granting PNC’s summary judgment motion. (Docket Nos. 67,
68). Following extensive briefing and argument, the Court issued a Memorandum Opinion and
Order on January 23, 2018, denying reconsideration. (Docket Nos. 89, 90). Specifically, the Court
found that Plaintiff was not entitled to relief under Rule 59(e), which applied because the motion
was filed within 28 days after entry of judgment, as she only sought to relitigate issues the Court
already had decided. (Docket No. 89 at 17).
On February 13, 2018, Plaintiff filed an appeal of the Court’s May 9, 2017 Order granting
PNC’s summary judgment motion and the January 23, 2018 Order denying Plaintiff’s motion for
reconsideration. Plaintiff filed her appellate brief on July 5, 2018, and PNC filed its response on
August 30, 2018.
On September 17, 2018, Plaintiff filed the pending motion for relief from judgment with
this Court, and also moved to stay the appellate proceedings pending disposition of her motion
here. The Third Circuit Court of Appeals granted Plaintiff’s motion to stay on September 26,
2018.
III.
Plaintiff’s Motion for Relief from Judgment and PNC’s Response
Plaintiff argues that she is entitled to relief from judgment because PNC and its counsel
committed a fraud upon her and the Court in litigating and arguing its motion for summary
judgment. (Docket No. 93, ¶ 2). Plaintiff alleges that PNC knowingly withheld a key page from
a document and then advanced false sworn declarations so that it could argue a position based on
the false statements.2 (Id.). The document in question is a report written by Jodie Fine-Sheriff,
2
Plaintiff obtained the document because PNC produced it to her counsel in connection with a related case
brought by Rosalind Jackson against PNC as the parties prepared for trial in that case. (Docket No. 93, ¶ 3).
3
PNC’s Employee Relations Investigator, concerning her investigation of Plaintiff’s complaint
against Fahrion. (Docket No. 93-1 at 8-13). According to Plaintiff, the last page of Fine-Sheriff’s
report, which previously was not produced, establishes that Fahrion’s declaration stating he was
unaware Plaintiff lodged a complaint about him until after she was no longer employed at PNC
“appear[s] to be false,” as does Fine-Sheriff’s declaration stating she did not tell Fahrion that
Plaintiff complained about him. (Docket No. 93, ¶¶ 37, 38, 49, 52). Plaintiff maintains that PNC
relied on Fahrion’s declaration to argue throughout the summary judgment proceedings that he
could not have retaliated against her because he was unaware of her complaint. (Id. ¶ 39). Plaintiff
claims that PNC’s counsel perpetuated this theory in arguing for summary judment, despite
knowing that a key document had been withheld and relying on a declaration that “was probably
false.” (Id. ¶¶ 41, 47). Plaintiff further claims that PNC’s counsel bolstered its position by arguing
that Fine-Sheriff did not identify who complained about Fahrion, but rather discussed with him
various hiring decisions he had made over a period of time, which Plaintiff now contends is false
based on the previously missing page of Fine-Sheriff’s report.3 (Id. ¶¶ 43, 64).
PNC responds that Plaintiff has not established that she is entitled to relief from judgment
under Rule 60. PNC acknowledges that it inadvertently produced an incomplete version of FineSheriff’s report to Plaintiff as part of its initial disclosures, but explains that this was an
Plaintiff also argues that PNC perpetuated its “false narrative” by relying on the inaccurate declarations of
Yates and Olenak that Fahrion was not involved in the decision to terminate Plaintiff. (Docket No. 93, ¶¶ 66, 67).
According to Plaintiff, those declarations are contradicted by Yates’ deposition testimony in Rosalind Jackson’s case
which Plaintiff interprets as showing that Yates did not have authority to fire employees. (Id. ¶¶ 69-71). As PNC
explained, Yates’ deposition was taken by Plaintiff’s counsel in the Jackson case following a motion in limine and
when only Jackson’s failure to promote claim remained pending. (Docket No. 97 at 16). Yates’ deposition did not
relate to the termination of Jackson or Plaintiff, and she did not testify about termination decisions. (Id). The twopage excerpt of Yates’ deposition testimony upon which Plaintiff relies confirms that Yates did not testify concerning
any employee’s termination, and it does not contradict the prior statements that Olenak recommended Plaintiff’s
termination and Yates agreed with the recommendation. (See Docket No. 93-1 at 14-16). Accordingly, Plaintiff’s
interpretation of Yates’ deposition testimony does not substantiate her claim that PNC perpetuated a false narrative as
she now claims, nor does it establish that she is entitled to relief from judgment under Rule 60.
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unintentional oversight. (Docket No. 97 at 1-2, 8-11). PNC maintains that the additional
information set forth in Fine-Sheriff’s report is consistent with the declarations that PNC submitted
and the arguments it advanced before this Court and the Third Circuit Court of Appeals. (Id. at 2,
11-14). PNC further argues that Plaintiff is not entitled to relief because the “new evidence” which
she relies upon is not material and would not have changed the outcome of this case. (Id. at 2, 1720).
After oral argument on whether Plaintiff is entitled to a hearing on her claim of fraud, the
Court posed several inquiries to PNC which elicited the following:
•
Declaration of Heather A. Pierce, Esq., dated January 17, 2019, in which Attorney
Pierce explains that the hard copy file that she received from PNC’s legal
department relating to Plaintiff contained an incomplete and a complete version of
Fine-Sheriff’s report of Plaintiff’s complaint about Fahrion. (Docket No. 123, ¶ 7).
As part of PNC’s initial disclosures, Attorney Pierce inadvertently produced to
Plaintiff a copy of the incomplete report, rather than the complete report, which
contained some additional information on the last page. (Id. ¶ 12). Attorney Pierce
affirmed that she produced the document to Plaintiff in good faith, the production
of the incomplete report was an unintentional oversight, and she was not aware at
the time that an incomplete document had been produced. (Id.). Attorney Pierce
further affirmed that she has “acted in good faith throughout this litigation, and the
production of the incomplete investigation report to [Plaintiff] was unintentional
and inadvertent.” (Id. ¶ 16). The incomplete and complete versions of FineSheriff’s report are attached as Exhibits A and B to Attorney Pierce’s Declaration.
See Docket No. 123 at 6-12, 14-20.
o
The incomplete version of the report indicates that Plaintiff initiated the
internal complaint on August 2, 2012, when she reported that she felt
discriminated against by Fahrion, and the matter was opened and assigned
to Jodie Fine-Sheriff. (Docket No. 123 at 6, 12). In the “Action History”
section of the report, Fine-Sheriff wrote that she met with Plaintiff on
August 6, 2012, and Plaintiff explained that she tried to discuss with Fahrion
why she was not selected for a promotion. (Id. at 10). Plaintiff noted that
all of Fahrion’s new hires seem to be “young, white girls with short skirts
and stiletto heels. . . . [she] isn’t sure that it’s racial, but she feels belittled.”
(Id.). Fine-Sheriff also summarized interviews that she conducted with
other employees between August 23 and August 28, 2012, to obtain
information about their various positions, the atmosphere in their
department and their interactions with Fahrion. (Id. at 10-11).
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o The complete version of Fine-Sheriff’s report indicates that Plaintiff
initiated the internal complaint about Fahrion on August 2, 2012, and the
matter was resolved and the case was closed on September 11, 2012.
(Docket No. 123 at 14, 20). The “Action History” section of the report
contains the same information noted above concerning Fine-Sheriff’s
meeting with Plaintiff and her interviews with other employees, (id. at 1819), but the report also contains a final page with the following additional
information:
▪
On August 30, 2012, Fine-Sheriff met with Joe Belczyk, who
indicated he was not involved in Fahrion’s hiring/promotion
decisions, but he was confident that Fahrion had business reasons
for them. (Docket No. 123 at 20). Belczyk was concerned about
upsetting or losing Fahrion because of potential retirements in his
department. (Id.).
▪
Fine-Sheriff’s notes of September 5, 2012, state that she met with
Belczyk and Fahrion, who explained that he did not select Plaintiff
for a promotion because she had some challenges with
professionalism, which were noted on her performance evaluations,
she needed to improve her interpersonal interactions with internal
and external service partners, and she failed to take certain training
classes which had been established as goals on her performance
evaluations. (Docket No. 123 at 20). Fahrion felt that Michelle
Merz was the stronger candidate and he chose her for the position
because she had strong leadership skills, an advanced degree and
had demonstrated her professionalism in her interactions with
Fahrion’s department. (Id.). Fine-Sheriff’s notes also state that she
consulted with legal and obtained Plaintiff’s training record, which
showed that she did not take the classes referenced by Fahrion. (Id.).
▪
On September 11, 2012, Fine-Sheriff wrote that she met with
Plaintiff and told her that she had raised some concerns which were
being addressed. (Docket No. 123 at 20). Fine-Sheriff told Plaintiff
that she was not technically qualified for the position based on the
job posting, but they would like to help her become a better
candidate in the future. (Id.). Fine-Sheriff advised Plaintiff to make
time to take courses for her development, which the management
team would support, and to send her an updated resume so that she
could help Plaintiff present herself well for internal opportunities.
(Id.). Fine-Sheriff told Plaintiff that Fahrion would work with her
on a development plan to include specific courses and other issues.
(Id.). Finally, Fine-Sheriff wrote that she spoke with the
management team and Fahrion would be taking some time out of the
office. (Id.). Belczyk asked if Fahrion could reach out to Plaintiff
regarding her development plan when he returned, which Fine6
Sheriff thought was an excellent idea. (Id.).
•
Supplemental Declaration of Heather A. Pierce, Esq., dated February 1, 2019, in
which she explained that the exhibits attached to her January 17, 2019 Declaration
were created from documents contained in the hard copy files that her firm received
from PNC relating to Plaintiff. (Docket No. 124, ¶ 2).
•
Declaration of Jodie Fine-Sheriff dated January 31, 2019, indicating that the
incomplete and complete version of her report concerning Plaintiff’s complaint
about Fahrion were printed from PNC’s electronic system and were not the product
of “cutting and pasting.” (Docket No. 125, ¶ 8). The incomplete version was
printed from the electronic system while Fine-Sheriff’s investigation still was
ongoing and the complete version was printed after her investigation was
completed. (Id.). Fine-Sheriff entered her notes from the investigation under the
Action History section of the report, and the notes cannot be changed, modified or
removed after they are entered and date and time stamped. (Id. ¶ 10). Fine-Sheriff
closed her investigation of Plaintiff’s complaint on September 11, 2012, and she
did not make any changes to the report after that time. (Id. ¶ 11).
•
Notice of Correction of Record dated February 12, 2019, relative to the Court’s
question whether “backup” notes exist for the declarations of Fine-Sheriff and
Fahrion concerning their testimony that Fine-Sheriff did not inform Fahrion that
Plaintiff complained about him, but instead talked with him about several of his
employment decisions. (Docket No. 118). During oral argument, the Court
inquired whether Fine-Sheriff made notes about her conversation with Fahrion, and
Attorney Pierce responded that they did not have notes. (Id. at 1). Following the
Court’s inquiry, PNC searched again and located Fine-Sheriff’s handwritten notes
from her discussion with Fahrion, (id. at 2), a copy of which is attached to the
Notice. As the handwritten notes were difficult to decipher, the Court ordered PNC
to produce a transcription of them. (Docket No. 119).
•
Declaration of Jodie Fine-Sheriff dated February 19, 2019, stating that as part of
the investigation, she spoke with Fahrion on August 31, 2012, and made notes of
the discussion. (Docket No. 122, ¶ 3). Fine-Sheriff’s handwritten notes of the
discussion and a transcription of same are attached as exhibits to the Declaration.
(Docket Nos. 122-1, 122-2). Fine-Sheriff’s notes indicate that she discussed a
variety of topics with Fahrion including:
o whether Fahrion was involved with hiring/promotion decisions made by
those who report to him;
o the promotions and/or job responsibilities of employees Cindy Jablonski,
Donna Zacharias, Mary McDonald, Amanda Saville, Michelle LubianoSales, Deitra Cooper, Laura Halbedl, Keith Patterson, Nichole Lorenze,
Linda Reynolds, Michelle Merz and Plaintiff; and
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o the perception that Fahrion prefers to surround himself with young, thin,
attractive white women in stiletto heels, and that he treats them more
favorably than other employees. (Docket No. 122-2 at 2-5).
Against this background, the Court next considers Plaintiff’s allegations that PNC engaged
in misconduct and fraud in litigating its summary judgment motion.
IV.
Analysis
Plaintiff asserts that PNC and its counsel engaged in an elaborate charade to convince the
Court that Fahrion did not know that Plaintiff complained about him and that he was not involved
in her termination. (Docket No. 99 at 1). Plaintiff claims that the final page of Fine-Sheriff’s
investigation report, which only came to light after PNC produced it to her counsel in related
litigation, contradicts Fahrion’s and Fine-Sheriff’s sworn declarations and establishes that PNC’s
counsel has not been honest with the Court concerning the production of documents relative to
Plaintiff’s internal complaint. (Id.). Accordingly, Plaintiff submits that a hearing should be held
and discovery should be permitted to determine whether PNC engaged in fraud on the Court under
Rule 60(d)(3), or if it engaged in misconduct or fraud which would warrant relief from judgment
under Rule 60(b)(2) or (b)(3). (Docket No. 93 at 26). The Court finds that a hearing is
unnecessary, as the existing record makes clear that Plaintiff has not met her burden to obtain relief
under Rule 60.
A. Plaintiff is not entitled to relief under Rule 60(b)(2).
Federal Rule of Civil Procedure 60(b) permits a party to seek relief from a final judgment
or order “under a limited set of circumstances including fraud, mistake, and newly discovered
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evidence.”4 Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). The Third Circuit Court of Appeals
views Rule 60(b) motions as “extraordinary relief which should be granted only where
extraordinary justifying circumstances are present.” Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir.
1991) (citation omitted).
In particular, Rule 60(b)(2) permits relief when “newly discovered evidence [ ], with
reasonable diligence, could not have been discovered” before summary judgment was granted.
Fed. R. Civ. P. 60(b)(2). Newly discovered evidence refers to “evidence of facts in existence at
the time of [summary judgment] of which the aggrieved party was excusably ignorant.” Bohus,
950 F.2d at 930 (citation omitted). A party is entitled to relief only if the newly discovered
evidence is “(1) material and not merely cumulative, (2) could not have been discovered prior to
trial through the exercise of reasonable diligence, and (3) would probably have changed the
outcome of the [motion].” Id. (citations omitted). To obtain Rule 60(b) relief, the movant “bears
a heavy burden” and must show more than the “potential significance of the new evidence.” Id.
(citations omitted).
Plaintiff has not met her heavy burden to show that she is entitled to relief under Rule
60(b)(2) because the last page of Fine-Sheriff’s report is not material, as it would not have changed
PNC is incorrect that Plaintiff’s motion under Rule 60(b)(2) and 60(b)(3) is untimely. (Docket No. 97 at 7).
A motion seeking relief under those Rules must be filed within one year after entry of the judgment or order. See Fed.
R. Civ. P. 60(c)(1). The order granting summary judgment in favor of PNC and against Plaintiff was entered on May
9, 2017, and the order denying Plaintiff’s prior motion for reconsideration which the Court construed under Rule
59(e), was entered on January 23, 2018. (Docket Nos. 65 and 90). Plaintiff filed the instant motion seeking relief
from judgment on September 17, 2018. Accordingly, Plaintiff’s motion is timely because the one-year time limitation
for a Rule 60(b) motion begins to run when the prior motion for reconsideration is denied. See Nat’l Passenger R.R.
Corp. v. Maylie, 910 F.2d 1181, 1183 (3d Cir. 1990) (finding motion was timely because “the correct date upon which
the one-year time limitation for a Rule 60(b) motion began to run was when the motion for reconsideration was
denied”); Bethel v. McAllister Bros., Inc., Civ. No. 91-2032, 1994 WL 328350, at *3 (E.D. Pa. July 11, 1994) (finding
Rule 60(b) motion was timely filed “because defendants’ Rule 50 and Rule 59 motions, which were themselves timely
filed, tolled the one year time period applicable to Rule 60(b) motions.”).
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the outcome of the summary judgment proceedings on her retaliation claim.5 The Court held that
Plaintiff did not establish a prima facie case of retaliation because she did not produce evidence
sufficient to raise the inference that her internal complaint was the likely reason for her termination.
(Docket No. 64 at 25). In that regard, the Court determined that the temporal proximity between
her complaint about Fahrion and her termination, as well as PNC’s alleged resistance to her receipt
of unemployment benefits, was too long as a matter of law for her to show the requisite causal
connection. (Id. at 28-29). In addition, Plaintiff’s contention that Fahrion was “very cold” to her
was not an adverse employment action. (Id. at 29). As the Court explained, “[e]ven assuming
that Fahrion knew that [Plaintiff] complained about him . . . and then talked less to her, [she] is
unable to state a prima facie retaliation claim” because “[a] reasonable employee would not be
dissuaded from complaining about suspected discrimination in the workplace if less verbal
interaction with a racially biased manager would be the only result.” (Id.) (emphasis added). The
Court’s decision on Plaintiff’s retaliation claim was not based on evidence of what Fahrion knew.
Nevertheless, the Court made clear that even if Fahrion knew about Plaintiff’s complaint, she did
not establish a prima face case of retaliation. Thus, even if the last page of Fine-Sheriff’s report
had been available to Plaintiff and means what she now claims,6 it would not have changed the
Plaintiff’s motion focuses on her retaliation claim, and she has not alleged any newly discovered evidence
relative to the Court’s ruling dismissing her discriminatory discharge claim. See Docket No. 93, ¶¶ 35, 36 (contending
that PNC developed a “false narrative” about Fahrion’s knowledge of Plaintiff’s complaint because “[i]f Fahrion was
not aware that [she] had filed an internal discrimination complaint against him, then her retaliation claim would fail
as a matter of law.”) (emphasis added).
5
The last page of Fine-Sheriff’s report indicates that she discussed with Fahrion the reason another employee
received a promotion and Plaintiff did not. (Docket No. 123 at 20). Contrary to Plaintiff’s assertions, the document
does not refute Fine-Sheriff’s declaration that she did not tell Fahrion it was Plaintiff who complained. Indeed,
Plaintiff’s contention that the document shows Fahrion “was asked to defend and justify his selection of Merz over
Gethers – not that he and Fine-Sheriff engaged in a broad discussion of all of his hires and promotions,” (Docket No.
93, ¶ 64), is contradicted by Fine-Sheriff’s notes of her August 31, 2012, discussion with Fahrion which indicate that
she talked with him about personnel decisions involving numerous employees, not just Plaintiff. (See Docket No.
122, Exs. A and B).
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Court’s decision on Plaintiff’s retaliation claim.7
In addition to holding that Plaintiff did not establish a prima facie retaliation claim, the
Court also found that PNC had a legitimate non-discriminatory reason for terminating Plaintiff
because she and Jackson violated PNC’s code of ethics. (Docket No. 64 at 30). The last page of
Fine-Sheriff’s report and the excerpt of Yates’ deposition testimony certainly would not have
changed the Court’s decision that summary judgment was appropriate for that additional reason.
Accordingly, Plaintiff is not entitled to relief under Rule 60(b)(2).
B. Plaintiff is not entitled to relief under Rule 60(b)(3).
Likewise, Plaintiff is not entitled to relief under Rule 60(b)(3), which provides that a party
may obtain relief if the opposing party engaged in fraud, misrepresentation or misconduct. Fed.
R. Civ. P. 60(b)(3). To prevail on a Rule 60(b)(3) motion, the moving party “must establish that
the adverse party engaged in fraud or other misconduct, and that this conduct prevented the moving
party from fully and fairly presenting his case.” Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir.
1983). “Failure to disclose or produce evidence requested in discovery can constitute Rule
60(b)(3) misconduct, id., but the Third Circuit has “not state[d] ... that every failure to produce
discovery qualifies as Rule 60(b)(3) misconduct.”8 Floorgraphics Inc. v. News Am. Mktg. In–
Store Servs., Inc., 434 F. App’x 109, 112 (3d Cir. 2011). “In order to sustain the burden of proving
Likewise, Yates’ deposition testimony would not have changed the Court’s decision on Plaintiff’s retaliation
claim. The excerpt of Yates’ testimony upon which Plaintiff relies does not indicate that Fahrion made the decision
to terminate Plaintiff or that he retaliated against her in any way. (See Docket No. 93-1 at 14-16).
7
The Third Circuit elaborated that “[w]hether there has been discovery misconduct warranting relief under
Rule 60(b)(3) requires not only consideration of the request propounded, but also the response by one’s adversary,
and whether the moving party resorted to a motion to compel or a request for sanctions as permitted by the federal
rules. Consideration of these factors informs our determination of whether a party was obligated to produce certain
evidence during discovery and failed to do so.” Floorgraphics, 434 F. App’x at 112. PNC produced the incomplete
version of Fine-Sheriff’s report as part of its initial disclosures, not in response to any discovery request by Plaintiff.
Accordingly, the situation present in this case militates against a finding that PNC engaged in discovery misconduct
pursuant to the relevant factors identified in Floorgraphics.
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fraud and misrepresentation under Rule 60(b)(3), the evidence must be clear and convincing.” Id.
(quoting Brown v. Pennsylvania R.R. Co., 282 F.2d 522, 527 (3d Cir. 1960)).
Here, Plaintiff has not shown by clear and convincing evidence that PNC deliberately
withheld the last page of Fine-Sheriff’s report and such conduct prevented her “from fully and
fairly presenting [her] case.” Stridiron, 698 F.2d at 207. First, the Court is satisfied that PNC’s
initial production of an incomplete version of Fine-Sheriff’s report was inadvertent and does not
qualify as fraud or misconduct under Rule 60(b)(3). See Floorgraphics, 434 F. App’x at 112 (not
every failure to produce discovery constitutes Rule 60(b)(3) misconduct). In that regard, the Court
credits Attorney Pierce’s declaration dated January 17, 2019, explaining that PNC’s failure to
produce the last page of Fine-Sheriff’s report was an unintentional oversight, and she was not
aware that an incomplete document had been produced as part of PNC’s initial disclosures. See
supra at 5. As PNC did not engage in fraud or misconduct, Plaintiff was not prevented from fully
and fairly presenting her case, particularly in view of the fact that the missing page would not have
changed the outcome of the summary judgment proceedings as discussed above.
C. Plaintiff has not shown a fraud on the Court under Rule 60(d)(3).
Finally, Plaintiff is not entitled to relief under Rule 60(d), which preserves the Court’s
power to “set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3). Fraud on the
court is distinct from the type of fraud covered by Rule 60(b)(3), which, as discussed, includes
misrepresentations or misconduct by opposing parties or counsel in a case. See Fed. R. Civ. P.
60(b)(3); see also Hobbs v. Pennell, Civ. No. 87–285–GMS, 2009 WL 1975452, at *3, n.2 (D.
Del. July 8, 2009) (distinguishing fraud under Rule 60(b)(3) from fraud on the court under Rule
60(d)(3)).
The Supreme Court has explained that fraud on the court must involve an intentional plan
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to deceive the court and also must affect the public interest in a way that fraud between individual
parties does not. See Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S. 238, 246 (1944)
(explaining that the harm of the fraud was so broad that it “involve[d] far more than an injury to a
single litigant,” but was rather “a wrong against the institutions set up to protect and safeguard the
public, institutions in which fraud cannot complacently be tolerated consistently with the good
order of society”), overruled on other grounds, Standard Oil Co. v. United States, 429 U.S. 17
(1976). Accordingly, in order to prove fraud on the court, a party must show: “(1) an intentional
fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) that in fact
deceives the court.”
Herring v. United States, 424 F.3d 384, 386 (3d Cir. 2005).
“[A]
determination of fraud on the court may be justified only by the most egregious misconduct
directed to the court itself, and [ ] it must be supported by clear, unequivocal and convincing
evidence.” Id. at 386-87 (internal quotation marks and citation omitted). Examples of the
egregious misconduct which constitutes fraud on the court include bribery of a judge or jury or
fabrication of evidence by counsel. Id. at 390.
Plaintiff has not established by clear, unequivocal and convincing evidence that PNC
engaged in fraud on the court. First, PNC’s counsel did not perpetrate an intentional fraud directed
to the Court. As already discussed, the Court credits Attorney Pierce’s explanation that PNC’s
failure to initially produce the last page of Fine-Sheriff’s investigation report was an unintentional
oversight. Although the Court finds that PNC’s failure to initially disclose the complete document
was inadvertent, it is worth noting that non-disclosure is not sufficient to sustain a fraud on the
court claim. See In re Am. Bus. Fin. Servs., Inc., 471 B.R. 354, 365 (Bankr. D. Del. May 18, 2012)
(citing Shaw v. AAA Eng’g & Drafting Inc., 138 F. App’x 62, 72 (10th Cir. 2005) (holding that
failure to disclose does not constitute egregious conduct necessary for a fraud on the court claim);
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Wilson v. Johns–Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989) (“[The mere nondisclosure to an adverse party and to the court of facts pertinent to a controversy before the court
does not add up to fraud upon the court. . . .”)). In addition, the Court was not deceived in any
way because, as discussed, the last page of Fine-Sheriff’s report would not have changed the
Court’s decision that Plaintiff failed to establish a prima facie case of retaliation or that PNC had
a legitimate, non-discriminatory reason for terminating her.
In sum, Plaintiff has leveled a very serious allegation that PNC committed a fraud upon
this Court by withholding a key page from a document and advancing false sworn declarations in
order to argue a position based on those false statements. (Docket No. 93, ¶ 2). Despite this
serious allegation, Plaintiff’s position is premised on a fair amount of speculation. See id. ¶ 5
(asserting PNC’s argument that Fahrion did not know Plaintiff complained about him “appears to
be false”); ¶ 33 (stating that the previously unproduced page of Fine-Sheriff’s report “suggests”
that the sworn declarations contain false statements); ¶¶ 37, 38 (claiming Fahrion’s averments that
he did not know about Plaintiff’s complaint until after she was no longer employed with PNC
“appear to be false”); ¶ 47 (contending that PNC’s counsel relied upon a sworn declaration that
“was probably false”). Contrary to Plaintiff’s speculation that the final page of Fine-Sheriff’s
report shows Fahrion was aware of Plaintiff’s complaint and demonstrates that certain declarations
they submitted were false, Fine-Sheriff’s handwritten notes of her discussion with Fahrion verify
that she did not inform him of the complaint, but rather discussed with him various personnel
decisions involving numerous employees, not just Plaintiff. For this reason, and the others
discussed herein, Plaintiff has not established by clear, unequivocal and convincing evidence that
PNC engaged in an intentional plan to deceive the Court which warrants relief under Rule 60(d)(3).
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D. PNC has not established that it is entitled to attorneys’ fees.
PNC requests that the Court award attorneys’ fees incurred in defending against Plaintiff’s
motion pursuant to 28 U.S.C. § 1927 and the Court’s inherent power. (Docket No. 97 at 20-22).
“[S]anctions may not be imposed under § 1927 absent a finding that counsel's conduct resulted
from bad faith, rather than misunderstanding, bad judgment, or well-intentioned zeal.” E.E.O.C.
v. U.S. Steel Corp., 877 F. Supp. 2d 278, 288 (W.D. Pa. 2012) (citation omitted). In addition, “a
finding of bad faith is usually required before inherent-power sanctions are ordered. . . .” Id.
(citation omitted). Bad faith must be demonstrated by clear and convincing evidence. Id. at 292.
PNC’s request for an award of attorneys’ fees is denied, as the Court finds that PNC has not shown
clear and convincing evidence of bad faith by Plaintiff’s counsel in litigating her motion for relief
from judgment.
V.
Conclusion
As another District Court aptly stated, “[g]iven the importance of finality in litigation, Rule
60 allows for relief from judgments under limited circumstances and the burden to obtain such
relief is high.” Advanced Multilevel Concepts, Inc. v. Bukstel, Civ. Action No. 11-3718, 2014 WL
6907973, at *13 (E.D. Pa. Dec. 9, 2014). For the foregoing reasons, Plaintiff has not met that high
burden and her motion seeking relief from judgment under Rule 60(b)(2), 60(b)(3) and 60(d)(3) is
denied. An appropriate Order follows.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: May 22, 2019
cc/ecf: All counsel of record
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