GETHERS v. PNC BANK
MEMORANDUM OPINION indicating that, for the reasons stated within, Defendant's summary judgment motion 42 will be granted. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 5/9/2017. (sks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 15-1559
Judge Nora Barry Fischer
This action arises from pro se Plaintiff Jalaine Gethers’s (“Gethers”) allegations that
Defendant PNC Bank (“PNC”) violated Title VII of the Civil Rights Act of 1964 (“Title VII”).
Presently before the Court are PNC’s and Gethers’s Motions for Summary Judgment. (Docket
Nos. 42, 47). In accord with the Court’s Local Rules and Federal Rule of Civil Procedure 56,
PNC submitted a brief in support, (Docket No. 43); a concise statement of material facts,
(Docket No. 44); and an appendix accompanying its motion, (Docket No. 46). Gethers filed a
brief in support of her motion, (Docket No. 47), and a concise statement of material facts,
(Docket No. 48). PNC responded with a brief, (Docket No. 49), and a counter to her concise
statement of material facts, (Docket No. 50).
Gethers followed up with a “preliminary
statement.”1 (Docket No. 51). The Court heard oral argument on the parties’ Motions on
January 9, 2017. (Docket No. 52, 56). At their request, the Court permitted them to file
additional briefs and supporting evidence in order to address the evidence and arguments
presented at the hearing. PNC submitted supplemental evidence with a brief in support, (Docket
The Court’s Local Rules and Federal Rules of Civil Procedure do not address “preliminary statements.” The Court
will construe, to the extent that it is able, Plaintiff’s “preliminary statement” as a counter to PNC’s concise statement
of material facts. See FED. R. CIV. P. 56(e).
Nos. 58, 59), and Gethers added evidence to the record, (Docket No. 57). The parties then filed
their respective responses to these filings. (Docket Nos. 60, 61). Hence, the Motions are now
ripe for the Court’s consideration.
In sum, the parties’ arguments focus on whether Gethers’s claims are properly supported
by the record to necessitate a jury trial. PNC asserts that summary judgment should be granted
in its favor because: (1) Gethers failed to identify any PNC comparator employees of another
race who were similarly situated to her and treated more favorably by PNC; and (2) her
termination lacked temporal proximity to her alleged protected activity such that she failed to
state a prima facie retaliation claim.
Gethers argues that the evidence supports summary
judgment in her favor because she has proven that she was terminated as a result of race
discrimination and retaliation.
For the following reasons, PNC’s Motion for Summary Judgment, (Docket No. 42), will
be granted, and Gethers’s Motion for Summary Judgment, (Docket No. 47), will be denied.
Local Rule 56.1 Violation
As an initial matter, the Court notes that Gethers failed to properly respond to PNC’s
Concise Statement of Material Facts, (Docket No. 44), as required by Local Rule 56.C.1, despite
numerous opportunities to do so. Local Rule 56.C.1 requires non-moving parties to a motion for
summary judgment to file their own concise statement responding to each numbered paragraph
in the movant’s concise statement.
See LCvR 56.C.1.
The non-moving party’s concise
statement must admit or deny the facts contained in the movant’s concise statement; set forth the
basis for denial, if any fact within the movant’s concise statement is not entirely admitted by the
non-moving party, with appropriate citation to the record; and set forth, in separately numbered
paragraphs, any other material facts at issue. See id.
A non-moving party faces severe consequences for not properly responding to a moving
party’s concise statement. Any alleged material facts “set forth in the moving party’s Concise
Statement of Material Facts . . . which are claimed to be undisputed, will for the purpose of
deciding the motion for summary judgment be deemed admitted unless specifically denied or
otherwise controverted by a separate concise statement of the opposing party.” LCvR 56.E. Yet,
Gethers did not specifically reply to each paragraph in PNC’s concise statement in her responses
to PNC’s summary-judgment motion. (Docket Nos. 47, 48, 51, 57, 60).
Courts do provide some leniency to pro se litigants when applying procedural rules.
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (“[W]e tend to be flexible
when applying procedural rules to pro se litigants, especially when interpreting their
The Court, however, “‘is under no duty to provide personal instruction on
courtroom procedure or to perform any legal chores for the defendant that counsel would
normally carry out.’” Id. (quoting Pliler v. Ford, 542 U.S. 225, 231 (2004)). Rather, pro se
litigants must adhere to procedural rules as would parties assisted by counsel. McNeil v. United
States, 508 U.S. 106, 113 (1993) (explaining that “we have never suggested that procedural rules
in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed
This Court “requires strict compliance with the provisions of [Local Rule 56].” E.E.O.C.
v. U.S. Steel Corp., No. 2:10-CV-1284, 2013 WL 625315, at *1 n.1 (W.D. Pa. Feb. 20, 2013)
(internal quotations omitted); see also Practices and Procedures of Judge Nora Barry Fischer
Documents/Judge/fischer_pp.pdf. It is well settled that “failure to comply can result in penalties
including the Court deeming as admitted a movant’s facts where the non-movant does not
properly controvert them.” Kiser v. Potter, No. 10-CV-22, 2012 WL 1134810, at *3-4 (W.D. Pa.
Apr. 4, 2012) (disregarding the “Summary of Relevant Facts” section of the plaintiff’s brief
because “the Local Rules provide that the [responsive concise statement of material facts] is the
exclusive means to controvert a movant’s allegedly undisputed facts,” which the plaintiff had
failed to provide). Accordingly, to the extent Gethers’s allegations of facts contained in her pro
se responses do not address a particular concise statement of material fact by PNC, that concise
statement of material fact will be deemed admitted. LCvR 56.E; see also Boyd v. Citizens Bank
of Pa., Inc., No. 12-CV-332, 2014 WL 2154902, at *2-3 (W.D. Pa. May 22, 2014) (applying
Local Rule 56.E and concluding that “to the extent [the pro se] Plaintiff’s recitation of the facts
do not specifically address Defendant’s statement of facts, Defendant’s statement will be deemed
admitted”). On the other hand, the Court will consider any facts properly set forth in Gethers’s
pro se responses that specifically contradict PNC’s statement of facts. See FED. R. CIV. P. 56(e);
Boyd, 2014 WL 2154902, at *3 (stating that “[t]o the extent Plaintiff’s statement of ‘fact’
specifically controverts Defendant’s, the Court will consider these facts in determining whether
summary judgment should be granted”).
Overview of the Facts
Gethers’s Employment History
Gethers is African-American and worked for PNC’s Automated Clearing House (“ACH”)
in Pittsburgh, Pennsylvania. (Docket No. 44 at ¶ 1). PNC initially hired her as an Operations
Clerk II in April 1996. (Id.). She then worked for PNC’s ACH Returns team until August 2013.
(Id. at ¶ 2). Rosalind Jackson (“Jackson”),2 who is also African-American, joined Gethers in the
ACH Returns team in 1999; Jackson and Gethers became friends. (Id. at ¶ 3). Beginning in
Jackson is a plaintiff in another action pending before this Court, at Docket No. 15-230. See Jackson v. PNC Bank,
No. 15-CV-230, 2016 WL 7324595, at *2 (W.D. Pa. Dec. 16, 2016).
February 2013, Amy Yates (“Yates”), a manager in the ACH Operations Department, became
Gethers’s and Jackson’s direct supervisor. (Id. at ¶ 6). Yates, who is Caucasian, see id., reported
to Duane Fahrion (“Fahrion”), Operations Manager for PNC’s ACH Returns, Reconcilement,
Government Processing, and Compliance functions. (Docket No. 44 at ¶¶ 4, 6).
February 2013, Fahrion was Gethers’s and Jackson’s direct supervisor, a role he began in
February 2010. (Id. at ¶ 4). He promoted Gethers to a Funds Transfer Work Lead (“Team
Lead”) position in October 2010. (Id. at ¶ 5). However, in March 2011, her performance review
called for improvement in her attitude. (Id. at ¶ 78). Gethers’s performance review for 2012
stated that she did not meet the expectations of professionalism when interacting with all levels
of PNC employees. (Docket No. 57-2 at 13-14).
ACH Transactions and Reg E Procedures
Gethers and Jackson processed ACH transactions for PNC. ACH transactions allow
consumers to directly debit their bank accounts to pay bills. (Docket No. 44 at ¶ 7). ACH return
transactions are processed when a consumer disputes unauthorized electronic payments. (Id. at
¶ 8). Consumers disputing debits to their PNC accounts must follow PNC’s procedures. (Id. at ¶
10). The consumer must initiate the dispute by visiting a retail bank branch, contacting PNC’s
National Financial Service Center (“NFSC”), or using PNC’s online-banking system. (Id.).
PNC then asks the consumer questions to gather information regarding the dispute and enters the
information into its Customer Relationship Inquiry Service System (“CRISS”). (Id. at ¶ 11).
Next, the consumer must complete and sign a Written Statement of Unauthorized or Improper
Debit (“WSUD”), which is then sent to the ACH Returns team. (Id. at ¶¶ 12-13).
Because the Federal Reserve regulates ACH transactions through a group of regulations
called “Reg E,” PNC’s Reg E Dispute Resolution Group (“Reg E Group”) investigates consumer
return transactions. (Id. at ¶ 14). In conducting its investigations, the Reg E Group evaluates
information previously entered into the CRISS system about the transaction and then
communicates through CRISS to discuss the dispute with the ACH Returns team. (Id. at ¶ 16).
PNC’s written procedures, which Gethers “helped write,” require the ACH Returns team to
review the Reg E Group’s notes entered in CRISS. (Id. at ¶¶ 17-18). But, Gethers recalled that
“it was never necessarily stated that you had to submit a CRISS case.” (Docket No. 57-2 at 18).
The ACH Returns team then processes the return transaction for the consumer after the Reg E
Group provides its permission. (Docket No. 44 at ¶ 19). PNC maintains that employees with
bank accounts at PNC must follow the same procedures as any other PNC consumer to initiate an
ACH return transaction. (Id. at ¶ 21). Gethers disagreed in her deposition, stating that PNC
employees could submit their proposed return transactions directly to the ACH Returns team.
(Docket No. 57-2 at 16). She then acknowledged that no written policy or procedure expressly
permits PNC employees to submit their returns directly to the ACH Returns team. (Id.).
Events Leading to Gethers’s Termination
While on vacation on July 25, 2013, Jackson called Gethers at work and informed her
that she was coming to the office to complete two WSUDs to reverse two transactions. (Docket
No. 44 at ¶¶ 22-23). Yates learned about Jackson coming to the office, (Docket No. 46-4 at ¶
14), but there are differing accounts as to what Yates did next. In her declaration, Yates states, “I
informed Gethers that [Gethers] could not process the return transactions for Jackson and that
she should not do so if Jackson came into the office.” (Id. at ¶ 15). According to Yates, Gethers
later told her that she had processed Jackson’s return transactions. (Id. at ¶ 16). Gethers
disagreed, stating that Yates “did not tell her not to process the dispute.” (Docket No. 46-5 at
20). She continued that Yates did not say anything substantive to her about processing Jackson’s
return transactions. (Docket No. 46-1 at 67-68). Gethers described Yates standing between her
and Jackson’s desk as Jackson filled out her written statements and she processed them. (Id. at
68). She testified that Yates “looked at me, she watched me process on my screen.” (Id. at 70).
Because Jackson did not initiate her ACH transactions by going to a retail branch or contacting
the NFSC, information regarding the return transactions was not entered into CRISS, and the
transactions were not sent to the Reg E Group for investigation. (Docket No. 44 at ¶ 26).
After Gethers processed the return transactions for Jackson, Yates contacted PNC’s
Employee Relations Information Center (“ERIC”) and reported that Gethers and Jackson may
have circumvented procedures. (Id. at ¶¶ 27-29). PNC Senior Employee Relations Investigator
Jean Olenak (“Olenak”) opened an investigation. (Id. at ¶ 30). When Olenak spoke with
Gethers and Jackson, they both admitted that the return transactions at issue had occurred. (Id. at
¶¶ 32-33). Jackson also conceded that she did not go to a retail branch or contact the NFSC. (Id.
at ¶ 33). Subsequently, Olenak placed Jackson and Gethers on administrative leave while she
completed the investigation. (Id. at ¶ 34). When Fahrion learned in July 2013 that Gethers and
Jackson circumvented procedures for ACH transactions, he provided Olenak with documents
showing the transactions Gethers processed for Jackson. (Docket No. 46-3 at ¶¶ 12-13). Olenak
found that Gethers had processed at least nine return transactions for Jackson between May and
July 2013 without using the proper procedures. (Docket No. 44 at ¶¶ 35-36).
Olenak concluded that both Jackson and Gethers had violated PNC’s code of ethics and,
specifically, the provisions regarding conflicts of interest, by circumventing the procedures for
processing and approving Jackson’s return transactions. (Id. at ¶ 41). The code of ethics, which
requires employees to “always act in a professional, honest and ethical manner when conducting
your activities with and on behalf of PNC,” provides:
We are expected to make sound business decisions in the best interests of PNC,
undistorted by personal interests. A conflict exists when personal interests
influence decisions that should be made solely on behalf of PNC or its clients.
We must never use our position at PNC for inappropriate personal gain or
advantage to us or a member of our family. Any situation that creates a conflict
of interest between personal interests and the interests of PNC should be avoided.
(Id. at ¶¶ 42-43).
The code of ethics delineates employee responsibilities and additional
responsibilities of PNC leadership as follows:
As a PNC employee, you are responsible for understanding and adhering to this
Always act in a professional, honest, and ethical manner when conducting
your activities with and on behalf of PNC.
Be familiar with the information contained in this Code and related ethics,
human resources, and compliance policies. In addition, you should be
well versed in any specific policies that pertain to your job
Do not engage in or tolerate inappropriate harassment of, discrimination
against, or bias toward another employee.
Provide all required notifications and obtain necessary approvals. If you
are in doubt as to whether or not notification or approval is required in a
particular situation, seek guidance from your supervisor, manager, or the
Corporate Ethics Office.
Never ask another employee to do something that would be prohibited by
Cooperate and provide honest and accurate information in investigations,
regulatory examinations, audits, and similar types of inquiries.
Promptly report concerns about possible violations of laws, regulations, or
this Code, whether it be by a colleague, customer, or vendor, to the
appropriate individuals. The section of the Code titled “Asking
Questions and Raising Concerns,” found on page 7, details several
methods by which you can report your concerns.
Complete required Code of Business Conduct and Ethics training in a
timely manner and keep up-to-date on current standards and
Additional Responsibilities of PNC Leadership
If you are in a leadership position at PNC, you have additional responsibilities.
Create a work environment where ethical business conduct is recognized
Never permit or ask an employee or anyone acting on behalf of PNC to do
something that would be prohibited by this Code.
Be a resource for employees. Communicate to employees about how the
Code and related policies apply to their daily work.
(Docket No. 46-5 at 10). While employed by PNC, Gethers reviewed the code of ethics,
understood that she had to abide by it, and received annual training on it. (Docket No. 44 at ¶
Olenak recommended to Yates that Gethers and Jackson be terminated, and Yates agreed.
(Id. at ¶ 45). In her declaration, Olenak states that PNC has a corrective action policy applying
to some employee performance and conduct issues. (Docket No. 59-2 at ¶ 3). The policy
attached to Olenak’s declaration, which was implemented in 2011 and was in place at the time of
Gethers’s termination, states that “[v]iolations of the Code of Business Conduct and Ethics”
could result in accelerated corrective action. (Id. at 5; Docket No. 63 at ¶¶ 3-7; Docket No. 63-1;
Docket No. 63-2; Docket No. 63-3). The policy also provides that PNC reserves the right to
immediately terminate an employee without engaging in corrective action. (Docket No. 59-2 at
5). On August 7, 2013, PNC terminated Gethers and Jackson. (Docket No. 44 at ¶¶ 46, 48).
When Olenak informed Gethers of her termination, she did not raise any concerns related to
discrimination or retaliation. (Id. at ¶¶ 47, 106).
Gethers’s Claim that PNC Treated Similarly Situated Employees Differently on
the Basis of Race
Gethers argues that in 2007, Jackson processed return transactions for PNC employee
Alicia Fletcher (“Fletcher”) without either of them losing their jobs. (Id. at ¶ 53). Fletcher, who
is African-American, first tried to dispute charges on her bank account by going to a retail
branch. (Id. at ¶¶ 53, 55). Because the retail branch could not help her, Fletcher asked Jackson
and Jackson’s supervisor at the time, Judith Webster (“Webster”), for assistance.
¶¶ 55-56). PNC investigated this as a potential code of ethics violation, but found none because:
(1) Fletcher first followed PNC’s required procedures before going to the ACH Returns Team;
and (2) Webster permitted Jackson to approve Fletcher’s returns. (Id. at ¶¶ 54, 56-57).
Gethers also maintains that she processed return transactions for three other PNC
employees who were not terminated. (Id. at ¶¶ 49-50). These employees were: Webster and
Keith Patterson (“Patterson”), both of whom are white; and a third individual whom Gethers is
presently unable to identify. (Id. at ¶ 50). Gethers admits that she does not know if these three
employees followed proper procedures or received supervisor permission before their return
transactions were processed. (Id. at ¶ 51). Gethers told no one at PNC except Jackson that she
processed returns for Webster, Patterson, and the unidentified employee. (Id. at ¶ 52). No
record evidence indicates that Yates, or anyone else, knew that Gethers had processed returns for
other PNC employees. (Id.).
At oral argument, Gethers mentioned that PNC did not terminate white employees, Cindy
Jablonski (“Jablonski”) and Marylou Rainey (“Rainey”), even though they did not document
return transactions in the CRISS system. (Docket No. 56 at 43-44). Gethers, however, did not
support this assertion with record evidence.3 In response, Yates and Fahrion declared that they
were not aware that Jablonski or Rainey improperly processed ACH return transactions. (Docket
Nos. 59-3 at ¶ 11; 59-4 at ¶ 5).
Additionally, PNC revealed that it terminated two Pittsburgh-area employees in its
Operations department in 2013—besides Gethers and Jackson—for violating PNC’s code of
ethics by engaging in conflicts of interest. (Docket No. 44 at ¶ 58). Specifically, PNC fired a
white employee for processing a transaction on his own account and an Asian employee for
overriding PNC’s internal policies and procedures. (Id. at ¶¶ 59-60).
When asked for information regarding comparators, Gethers had not identified these individuals at her deposition.
(Docket No.46-1 at 74; see also Docket No. 58 at 5 n.1).
Gethers next contends that a white employee, Barbara Siko (“Siko”), received
preferential treatment as compared to her and Jackson by being permitted to miss a mandatory
training class. (Docket No. 46-1 at 75-76). The record evidence shows that Siko had worked in
various positions at PNC since 1998 and was promoted in January 2013 to a Funds Transfer
Work Leader position4 on PNC’s ACH Reconcilement team. (Id. at ¶¶ 89-90, 93). Sometime
after Siko became a Team Lead in early 2013, Siko and Gethers were required to take
management-training classes. (Id. at ¶ 96). While Gethers attended, Siko missed one class
because she had work to complete.
(Id. at ¶¶ 96, 98).
PNC claims that Gethers lacked
“knowledge of whether Siko spoke to anyone at PNC before she missed the class” and “had no
problem going to the class even though Siko was not attending.” (Id. at ¶¶ 97-98).
Gethers’s deposition testimony paints another picture. Gethers recalled that “[Siko] had
to take the class to keep her Team Lead position.” (Docket No. 46-1 at 76). Gethers heard this
from Yates, who, during a conversation with her and Siko, remarked that Gethers had to take the
class “to have a chance to become a supervisor.” (Id. at 81). Hence, Gethers testified that Siko
did not lose her Team Lead position despite not attending the class. (Id. at 76).
Gethers also alleges that Fahrion did not terminate Siko after “she walked out on the job”
and did not return. (Docket No. 44 at ¶¶ 99-100). To that end, she declared that Fahrion
“refused to have [Siko] reported to HR. He asked Amy Yates to continue to call [Siko] so that
she could keep her job.” (Docket No. 46-1 at 16). Yates did not just try to call Siko; she also
called Gethers and told her that Siko “had walked out.” (Id. at 83). Gethers submitted a
telephone call log purportedly showing Yates’s calls to her about Siko leaving her position.
(Docket No. 57-1 at 2). Gethers learned from Yates that Siko remarked that “she was tired of
this—and she used profanity.” (Docket No. 46-1 at 84).
Gethers did not apply for the promotion that Siko received. (Docket No. 44 at ¶ 91).
PNC portrays Gethers as “admit[ting] . . . that she has no personal knowledge of Siko’s
employment status after she allegedly walked out on the job.” (Docket No. 44 at ¶ 101). PNC
bolsters its position with a resignation letter from Siko effective June 7, 2013. (Id. at ¶ 102).
About a month and a half later, PNC rehired Siko as an Operations Analyst. (Docket No. 44 at ¶
102). Fahrion and Yates did not participate in hiring or supervising Siko as an Operations
Analyst. (Docket Nos. 59-3 at ¶ 10; 59-4 at ¶ 4). Further, Siko lost all of her previous seniority
with PNC, was considered a new employee, and earned a lower salary than she had had in her
previous position. (Docket No. 59-2 at ¶ 4).
Gethers’s Retaliation Claim
Gethers claims that Fahrion retaliated against her after she reported him to the ERIC in
August 2012 when he promoted a white employee, Michelle Merz (“Merz”) in July 2012.5
(Docket Nos. 44 at ¶ 79; 46-1 at 16-17; Docket No. 46-3 at ¶ 8; 47 at 3). The position required,
in part, that applicants have a college degree. (Docket No. 44 at ¶ 63). Gethers did not have a
college degree, while Merz satisfied the position’s educational requirements, had experience
working in ACH operations, and had an ability to communicate with management. (Id. at ¶¶ 7071). Gethers argues that Fahrion would not approve classes for her, saying that she had too
much work, and after she reported Fahrion, he became “very cold” towards her at work by not
speaking to her often on work-related matters. (Docket Nos. 46-1 at 17; 57-2 at 6). At her
deposition, Gethers acknowledged that she did not tell Fahrion that he had reported him, and she
admitted that she has no knowledge that Fahrion was aware of her report. (Docket No. 44 at ¶
86). PNC investigated Gethers’s complaint, through which Employee Relations Investigator
Jodie Fine-Sheriff (“Fine-Sheriff”) spoke to Gethers and to thirteen other members of the ACH
To the extent that Gethers’s case could be read as a failure-to-promote claim, the below discussion, infra Section
IV.C, addresses same.
Operations Department. (Id. at ¶¶ 79-82; Docket No. 59-5 at ¶ 9). Fine-Sheriff determined that
Gethers’s report was unfounded, as no one but Gethers complained about racial discrimination,
and she did not meet the qualifications for the position for which Merz was selected. (Docket
No. 44 at ¶ 83; Docket No. 59-5 at ¶ 9). Gethers did not escalate her complaint any further or
contact the ERIC to report that her concerns were not addressed. (Docket No. 44 at ¶ 84). Aside
from reporting Fahrion to the ERIC, Gethers did not raise any other complaints or concerns
related to discrimination during her employment with PNC. (Id. at ¶ 106).6
Gethers also avers that PNC retaliated against her by opposing her receipt of
unemployment benefits. She points to the fact that PNC denied her unemployment application
but approved Jackson for unemployment, even though PNC terminated them at the same time.
(Docket No. 46-1 at 88).
PNC responds, in part, that it does not handle claims for
unemployment compensation; rather, Equifax does. (Docket No. 59-2 at ¶¶ 5-6; see also Docket
No. 58 at 10). Yet, following the appeal process, Gethers received unemployment compensation.
(Docket No. 46-1 at 88).
Standard of Review
A grant of summary judgment is appropriate when the moving party establishes “‘that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Heffernan v. City of Paterson, 777 F.3d 147, 151 (3d Cir. 2015) (quoting FED.
R. CIV. P. 56(a)). A genuine dispute of material fact is one that could affect the outcome of
litigation. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “‘[w]here the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party,
She acknowledged that Fine-Sheriff suggested a development plan for her. (Docket No. 57-2 at 10). She also
admitted that Fahrion had previously spoken to her about her interactions with management. (Id. at 11).
there is no genuine issue for trial.’” N.A.A.C.P. v. N. Hudson Reg’l Fire & Rescue, 665 F.3d
464, 475 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of
genuine disputes. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its
burden, the non-moving party must present sufficient evidence of a genuine dispute in rebuttal.
Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475
U.S. at 587). When considering the parties’ arguments, the Court is required to view all facts
and draw all inferences in the light most favorable to the non-moving party. Id. (citing United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Further, the benefit of the doubt will be given
to allegations of the non-moving party when in conflict with the moving party’s claims. Bialko
v. Quaker Oats Co., 434 F. App’x 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan
Assocs., 44 F.3d 195, 200 (3d Cir. 1995)).
Nonetheless, a well-supported motion for summary judgment will not be defeated where
the non-moving party merely reasserts factual allegations contained in the pleadings. Betts
v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of
West Chester, 891 F.2d 458, 460 (3d Cir. 1989)).
The non-moving party must resort to
affidavits, depositions, admissions, and/or interrogatory answers to demonstrate the existence of
a genuine dispute. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir.
2013) (citing Celotex Corp., 477 U.S. at 324). “[U]nsubstantiated arguments made in briefs or at
oral argument are not evidence to be considered.” Versarge v. Twp. of Clinton, 984 F.2d 1359,
1370 (3d Cir. 1993) (citing Bell v. United Princeton Props., Inc., 884 F.2d 713, 720 (3d Cir.
1989)). Just like counseled parties, pro se litigants must adhere to procedural rules. McNeil, 508
U.S. at 113.
Gethers alleges that PNC discriminated against her by terminating her on the basis of race
and retaliating against her because she complained internally that Fahrion denied her a
promotion due to her race. Unless there is evidence of direct discrimination, claims under Title
VII are analyzed under the burden-shifting framework created in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). The McDonnell Douglas framework contains three steps.
First, a plaintiff must show a prima facie case for unlawful employment discrimination. This
framework requires that Gethers establish a prima facie case by demonstrating that: (1) she is a
member of a protected class; (2) she is qualified for the position; (3) she was subject to an
adverse employment action despite being qualified; and (4) the adverse employment action
occurred in a manner raising an inference of unlawful discrimination. See id. at 802. The Court
determines whether a plaintiff establishes a prima facie case as a matter of law. Sarullo v. U.S.
Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
If a plaintiff successfully establishes a prima facie case, the burden shifts to the employer
to articulate a legitimate non-discriminatory reason (“LNDR”) for the adverse employment
action. Id. (citing McDonnell Douglas, 411 U.S. at 802). Once the employer does so, the burden
then shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate
reasons proffered by the employer were merely a pretext for discrimination, and not the true
motivation for the adverse employment action. Id. (citing Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981)). Although the McDonnell Douglas framework is used to
analyze both Title VII unlawful termination and retaliation claims, the Court will analyze
Gethers’s claims separately because the elements necessary to state a prima facie claim for each
Gethers must set forth a prima facie Title VII unlawful termination case before the Court
considers PNC’s reasons for terminating her. The parties do not dispute that the first three
elements of Gethers’s prima facie case have been established because: (1) she is African
American, (Docket No. 44 at ¶ 1), and a member of a protected class; (2) she was qualified for
her former position as a Team Lead on PNC’s ACH Returns team, (Id. at ¶ 5); and (3) her
termination is an adverse employment action. (See Docket No. 43 at 12 (wherein PNC argues
that its Motion for Summary Judgment must be granted because Gethers cannot establish the
fourth element of her claim)). Thus, the sole element in dispute is whether Gethers has advanced
sufficient record evidence showing that her termination raised an inference of unlawful
Gethers contends that PNC treated similarly situated employees outside of her protected
class (her comparators) more favorably. “In determining whether similarly situated nonmembers
of a protected class were treated more favorably than a member of the protected class, the focus
is on the particular criteria or qualifications identified by the employer as the reason for the
adverse action.” Simpson v. Kay Jewelers, 142 F.3d 639, 647 (3d Cir. 1998) (citing Ezold v.
Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 528 (3d Cir. 1993)). “The question of
whether other employees are ‘similarly situated’ is fact-intensive,” Sims v. Court of Common
Pleas of Allegheny County, No. 10-CV-151, 2010 WL 3896428, at *4 (W.D. Pa. Sept. 30, 2010),
but it is a question of law. Sarullo, 352 F.3d at 797. “The employee’s positive performance in
another category is not relevant and neither is the employee’s judgment as to the importance of
the stated criterion.” Simpson, 142 F.3d at 647 (internal citation omitted) (citing Healy v. N.Y.
Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988)). Federal courts employ many factors when
weighing whether alleged comparators are similarly situated:
Context matters in assessing the factors relevant to the inquiry of
whether two employees are similarly situated. In this particular
context—workplace disciplinary and/or personnel actions—
relevant factors include a “showing that the two employees dealt
with the same supervisor, were subject to the same standards, and
had engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or the
employer’s treatment of them.”
McCullers v. Napolitano, 427 F. App’x 190, 195 (3d Cir. 2011) (quoting Radue
v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)) (citation omitted); see also
Nguyen v. AK Steel Corp., 735 F. Supp. 2d 346, 361 (W.D. Pa. 2010) (recognizing same general
legal principles); Epps v. First Energy Nuclear Operating Co., No. 11-CV-1462, 2013 WL
1216858, at *18 (W.D. Pa. Mar. 25, 2013) (same).
Gethers and Jackson both admitted that they initiated the return transactions at issue
without visiting a retail bank or contacting the NFSC. (Docket No. 44 at ¶¶ 32-33). Gethers
processed at least nine return transactions for Jackson between May and July 2013 even though
Jackson did not visit a retail bank or contact the NFSC first. (Id. at ¶¶ 26, 31-37). She
maintained in her deposition that PNC employees could submit return transactions directly to the
ACH Returns team. (Docket No. 57-2 at 16). Despite her stance, following an investigation, she
was fired. What matters is whether PNC treated similarly non-African-American employees
who also circumvented PNC’s procedures without first contacting a retail bank or the NFSC.
Gethers contends that PNC employees Fletcher and Jackson were not terminated in 2007
when they circumvented PNC’s ACH transaction procedures and that this shows that PNC
treated other employees differently than it treated her. But, Fletcher is not a similarly situated
employee to Gethers.
First, Fletcher is African American, making Fletcher an improper
comparator employee because she and Gethers are members of the same protected class. (Id. at ¶
53); Simpson, 142 F.3d at 647 (citing Ezold, 983 F.2d at 528) (comparator analysis measures
“whether similarly situated nonmembers of a protected class were treated more favorably than a
member of the protected class”).
Second, Fletcher handled her return transactions much
differently than Gethers. Fletcher tried to dispute charges on her bank account by going to a
retail branch. (Docket No. 44 at ¶ 55). Jackson’s then-supervisor, Webster, allowed Jackson to
approve Fletcher’s return transactions. (Id. at ¶¶ 55-56). Third, PNC did not impose a sanction
because: (1) Fletcher first followed PNC’s required procedures before going to the ACH Returns
Team; and (2) Webster permitted Jackson to approve Fletcher’s returns. (Id. at ¶¶ 54, 56-57).
Fletcher received permission to override PNC’s ACH transaction procedures, while Gethers did
not. (Id. at ¶ 57); Simpson, 142 F.3d at 647 (“[T]he focus is on the particular criteria . . .
identified by the employer as the reason for the adverse action.”) (citing Ezold, 983 F.2d at 528).
Thus, Fletcher is not similarly situated to Gethers, and Gethers’s claim fails to the extent that it
relates to PNC’s treatment of Fletcher.
Gethers also alleges that she processed transactions for three PNC employees who were
not terminated: Webster (white); Patterson (white); and an unnamed individual (race unknown).
(Docket No. 44 ¶¶ 49-50). But, no evidence shows that the PNC decision makers who fired
Gethers learned that she processed returns for these three employees. Hence, there is no proof
before this Court that PNC treated them differently than Gethers. (Id. at ¶ 52); Guidotti, 716
F.3d at 773 (citing Celotex Corp., 477 U.S. at 324). Moreover, Gethers does not know whether
Webster, Patterson, or the unnamed employee attempted to follow PNC’s ACH transaction
procedures or received permission from their supervisors to have the transactions returned.
(Docket No. 44 at ¶ 51). As unsupported allegations are not sufficient for this Court to permit
this claim to go before a jury, it likewise fails. Simpson, 142 F.3d at 647 (citing Ezold, 983 F.2d
During oral argument, Gethers highlighted that PNC is biased against African-American
employees because it did not terminate Caucasian employees, Jablonski and Rainey, for not
documenting return transactions in CRISS, while ascribing similar conduct to Gethers and
Jackson. (Docket No. 56 at 43-44). Again, Gethers’s opinion is unsubstantiated because she did
not support it with record evidence, despite an opportunity to do so. (Docket No. 53). Yates and
Fahrion have since declared that they had no knowledge that white employees, Jablonski or
Rainey, improperly processed ACH return transactions. (Docket Nos. 59-3 at ¶ 11; 59-4 at ¶ 5).
As a result, the bald allegations that Jablonski and Rainey were not punished for their alleged
failure to document return transactions in CRISS while Gethers, an African American, was, are
not sufficient for Gethers to avoid summary judgment.
See Versarge, 984 F.2d at 1370
(“[U]nsubstantiated arguments made in briefs or at oral argument are not evidence to be
In further response to this argument, PNC has presented evidence showing that it
terminated two other Pittsburgh-area employees in its Operations department in 2013 for creating
conflicts of interest and violating PNC’s code of ethics. (Docket No. 44 at ¶ 58). Specifically,
PNC fired a white employee for processing a transaction on his own account and an Asian
employee for overriding its internal policies and procedures. (Id. at ¶¶ 59-60). While this
evidence alone does not justify granting PNC’s Motion for Summary Judgment, the Court
acknowledges that such conduct and its repercussions are analogous to Gethers’s.
Gethers next cites two incidents that involved fellow PNC Team Lead Siko as evidence
that PNC treated a comparator employee better than she was treated. (Id. at ¶¶ 89-90). In the
first incident, PNC required Siko and Gethers to take management-training classes. (Id. at ¶ 96).
Gethers attended the class but Siko did not because she claimed that she had too much work to
complete. (Id. at ¶¶ 96, 98). Despite missing the class, Siko remained a Team Lead. (Docket
No. 46-1 at 76). In the second incident, Siko “walked out on the job” and did not return, (Docket
No. 44 at ¶¶ 99-100), yet Fahrion “refused to have [Siko] reported to HR. He asked Amy Yates
to continue to call [Siko] so that she could keep her job.” (Docket No. 46-1 at 16). Nearly a
month and a half later, PNC rehired Siko as an Operations Analyst. (Docket No. 44 at ¶ 102).
Siko missing a class and walking off the job versus PNC terminating Gethers for not
following ACH transaction procedures is an “apples-to-oranges” comparison. Simpson, 142 F.3d
at 647 (comparator analysis focuses “on the particular criteria . . . identified by the employer as
the reason for the adverse action,” which is the code of ethics violation here) (citing Ezold, 983
F.2d at 528). Rather, Gethers must put forward facts more analogous to the circumstances of her
termination showing that PNC is tougher on African-American employees who violate the code
of ethics or bypass return transaction procedures than it is on other-race employees. She has not
been able to make that showing. Accordingly, this argument does not advance her case.
Gethers also brings up the events leading to her termination as proof that PNC fired her
on the basis of race. (Docket No. 46-1 at 70-73). PNC and Gethers have different accounts
regarding how Yates learned that Gethers processed Jackson’s return transactions without
creating a CRISS case. Yates declares, “I informed Gethers that [Gethers] could not process the
return transactions for Jackson and that she should not do so if Jackson came into the office.”
(Docket No. 46-4 at ¶ 15). She further avers that Gethers later told her that she processed
Jackson’s return transactions. (Id. at ¶ 16).
Gethers states that Yates “did not tell her not to process the dispute.” (Docket No. 46-5
She testified that Yates did not say anything substantive to her about processing
Jackson’s return transactions, (Docket No. 46-1 at 67-68), despite the fact that Yates stood
between her and Jackson’s desk as Jackson filled out her written statements and Gethers
processed them. (Id. at 68). According to Gethers, Yates “looked at me, she watched me
process on my screen.” (Docket No. 46-1 at 70).
With this backdrop, Gethers contends that Yates’s failure to stop her and Jackson from
circumventing PNC’s ACH transaction procedures “is an example of entrapment by an employer
to get rid of an employee” and that this constitutes unlawful race-based termination. (Docket
No. 57 at 1).7 The Court acknowledges that it must view the parties’ recollections in the light
most favorable to Gethers, the non-moving party. Bialko, 434 F. App’x at 141 n.4. To this end,
the Court notes that entrapment is generally a defense employed in criminal matters. See Jones
v. Bombeck, 375 F.2d 737, 738 (3d Cir. 1967) (noting that entrapment may be a proper defense
in criminal actions). To the extent that Gethers makes an entrapment argument, the Court
construes it as one of pretext. Gethers’s argument would be viable if she had shown that Yates
prevented a non-African-American employee from violating ACH-transaction procedures and
did not report that employee to the ERIC. Simpson, 142 F.3d at 647 (citing Ezold, 983 F.2d at
528) (comparator analysis focuses “on the particular criteria . . . identified by the employer as the
The Court notes that PNC’s code of ethics does require that one in a leadership position never permit an employee
to do something that would be prohibited by the code. (See Docket No. 46-5 at 10). Here, viewing the facts in a
light most favorable to Gethers, Yates could be seen as a “leader” “permitting” an employee to act against the code.
However, the record is clear that Yates did report both Gethers and Jackson, as she was required to do per the code.
(See Docket Nos. 44 at ¶¶ 27-29; 46-5 at 10). Moreover, the employee manual addressing corrective action requires
employees to follow established policies and procedures. (Docket No. 63-1 at 2). Although a progressive corrective
action is described, PNC reserves the right to depart from same “when, at its sole discretion, such departure is
warranted based on facts and circumstances of the situation.” (Id.). Examples of performance issues that may result
in accelerated corrective action include violations of the code of ethics. (Id.). The employee manual further
provides that “[e]mployment with PNC is always on an at-will basis, and either PNC or you may decide to terminate
the employment relationship at any time and for any reason.” (Id.).
reason for the adverse action”). However, the record evidence does not support this contention.
Rather, as PNC has argued, Yates had a duty to report the unethical conduct that she had
observed. (See Docket Nos. 44 at ¶¶ 42-43; 46-5 at 10).
After considering Gethers’s assertions that PNC terminated her because of her race, the
Court concludes that none of her arguments or the evidence she cites indicates that PNC treated a
similarly situated employee better than it treated her because of race. Thus, she fails to state a
prima facie unlawful-termination claim under Title VII and is not entitled to a jury trial on that
claim. Therefore, the Court need not address whether PNC demonstrated an LNDR for firing
Gethers or if PNC’s LNDR was pretext for unlawful racial discrimination. For completeness,
however, the Court will briefly address the issue.
Based upon Gethers’s and Jackson’s
admissions, it appears that they violated PNC’s code of ethics, despite Gethers’s
acknowledgement that she reviewed the code of ethics, understood that she had to abide by it,
and received annual training on it. (Docket No. 44 at ¶ 44). Given these undisputed facts, the
Court finds that PNC had an LDNR for terminating Gethers and Jackson. Indeed, for these same
reasons, the Court granted PNC’s motion for summary judgment in Jackson’s case, see Jackson,
2016 WL 7324595, at *7, and will do the same here.
Gethers claims that PNC retaliated against her because she complained to the ERIC that
Fahrion promoted a white employee instead of her due to race. Retaliation is defined by federal
law as “an employer . . . discriminat[ing] against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a).
To succeed in her retaliation claim, Gethers must first state a prima facie case. To do so,
she must show that: “(1) she engaged in activity protected by Title VII; (2) the employer took an
adverse employment action against her; and (3) there was a causal connection between her
participation in the protected activity and the adverse employment action.” Carvalho-Grevious
v. Del. State Univ., 851 F.3d 249, 257 (3d Cir. 2017); Nelson v. Upsala Coll., 51 F.3d 383, 386
(3d Cir. 1995). “[T]he anti-retaliation provision of Title VII protects those who participate in
certain Title VII proceedings (the ‘participation clause’) and those who oppose discrimination
made unlawful by Title VII (the ‘opposition clause’).” Moore v. City of Phila., 461 F.3d 331,
341 (3d Cir. 2006) (quoting Slagle v. Cty. of Clarion, 435 F.3d 262, 266 (3d Cir. 2006)).
Employees must have a good faith, objectively reasonable belief that the activity she opposes (or
participates in a proceeding against) is unlawful under Title VII.
Clark Cty. Sch. Dist.
v. Breeden, 532 U.S. 268, 270 (2001). Opposing discrimination includes “‘informal protests of
discriminatory employment practices, including making complaints to management.’”
Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006)
(quoting Barber v. CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir. 1995)).
A plaintiff seeking to prove her retaliation claim through indirect evidence, as Gethers
seeks to here, “may do so by applying the familiar McDonnell Douglas burden-shifting
framework.” Id. “After establishing a prima facie case of retaliation, the burden shifts to the
employer to provide a legitimate non-retaliatory reason for its conduct.” Id. If the employer
provides such a reason, then “the burden shifts back to the plaintiff ‘to convince the factfinder
both that the employer’s proffered explanation was false [that is, a pretext], and that retaliation
was the real reason for the adverse employment action.’” Id. (quoting Daniels v. Sch. Dist. of
Phila., 776 F.3d 181, 192 (3d Cir. 2015) (alterations in original)). “The onus is on the plaintiff to
establish causation at two stages of the case: initially, to demonstrate a causal connection as part
of the prima facie case, and at the final stage of the McDonnell Douglas framework to satisfy her
ultimate burden of persuasion by proving pretext.” Id.
In the context of a plaintiff’s burden at the prima facie stage, the Third Circuit Court of
Appeals clarified that a plaintiff must only produce evidence “‘sufficient to raise the inference
that her protected activity was the likely reason for the adverse employment action.” Id. at 259
(emphasis in original) (internal quotations omitted). The Third Circuit noted that it has held that
“a plaintiff must prove that retaliatory animus had a ‘determinative effect’ on the employer’s
decision to subject the employee to the adverse employment action,” which is “functionally the
same” as the Supreme Court’s “but-for” causation standard.
Id. at 258.
“To prove a
‘determinative effect,’ the plaintiff must show ‘by a preponderance of the evidence that there is a
but-for causal connection’ between the adverse employment action and retaliatory animus.” Id.
(quoting Miller v. CIGNA Corp., 47 F.3d 586 586, 595-96 (3d Cir. 1995)). “Similarly, a plaintiff
who proves that retaliatory animus was the ‘real reason’ for the adverse employment action will
necessarily be able ‘to show that the harm would not have occurred in the absence of—that is,
but for—the defendant’s conduct.’” Id. (quoting Univ. of Tex. Southwestern Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2525 (2013)). The Third Circuit further explained:
[T]he Supreme Court has made clear that Title VII retaliation claims must be
proved according to traditional principles of but-for causation. [Nassar, 133 S.
Ct. at 2533]. Understanding the retaliation [—] plaintiff’s ultimate burden, we
turn to the question of whether that burden differs at the prima facie stage of the
case. We hold that it does. See Marra v. Phila. Hous. Auth., 497 F.3d 286, 302
(3d Cir. 2007) (“In assessing causation, we are mindful of the procedural posture
of the case.”); see also Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.5
(3d Cir. 2000). “[T]he relative evidentiary impact of [causal evidence] may vary
depending upon the stage of the McDonnell Douglas proof analysis and the
procedural circumstance,” i.e., if proffered to satisfy a plaintiff’s prima facie case
for the purpose of summary judgment or if proffered to reverse a verdict).
Consistent with our precedent, a plaintiff alleging retaliation has a lesser causal
burden at the prima facie stage. See e.g., Doe v. C.A.R.S. Prot. Plus, Inc., 527
F.3d 358, 365 (3d Cir. 2008) (“[T]he prima facie requirement for making a Title
VII claim ‘is not onerous’ and poses ‘a burden easily met.’” (quoting Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207
Some circuits have found, albeit without much in the way of explanation, that a
plaintiff must prove but-for causation as part of the prima facie case of retaliation.
See EEOC v. Ford Motor Co., 782 F.3d 753, 770 (6th Cir. 2015) (en banc); Ward
v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014). We decline now to heighten the
plaintiff’s prima facie burden to meet her ultimate burden of persuasion. That is
because we agree with the Fourth Circuit that to do so
would be tantamount to eliminating the McDonnell Douglas
framework in retaliation cases . . . . If plaintiffs can prove but-for
causation at the prima facie stage, they will necessarily be able to
satisfy their ultimate burden of persuasion without proceeding
through the pretext analysis. Had the Nassar Court intended to
retire McDonnell Douglas and set aside 40 years of precedent, it
would have spoken plainly and clearly to that effect.
Foster, 787 F.3d at 251. We conclude that at the prima facie stage the plaintiff
must produce evidence “sufficient to raise the inference that her protected activity
was the likely reason for the adverse [employment] action.” Kachmar v. SunGard
Data Systems, Inc., 109 F.3d 173, 177 (3d Cir. 1997) (emphasis added) (internal
quotation marks omitted).
Id. at 258-59. Thus, in accordance with Third Circuit precedent, Gethers must produce evidence
sufficient to raise the inference that her protected activities were the likely reason for her
termination. Despite the relatively light burden as articulated by the Third Circuit, the Court
concludes that Gethers has failed to satisfy same.
Gethers cites multiple examples of retaliation that the Court will separately address.
First, she contends that PNC terminated her as retaliation for reporting Fahrion to the ERIC in
August 2012 after he promoted Merz (white) to a position instead of her. (Docket Nos. 44 at ¶
79; 46-1 at 16-17; 48 at 2). Reporting Fahrion to the ERIC is a protected activity under Title
VII. 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer . . .
to discriminate against any individual . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.”);
see also Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995) (noting that “informal
protests of discriminatory employment practices, including making complaints to management,
writing critical letters to customers, protesting against discrimination by industry or society in
general, and expressing support of co-workers who have filed formal charges,” constitute
protected activities) (internal quotations omitted); Kerns v. Drexel Univ., No. 06-CV-5575, 2008
WL 2876590, at *19 (E.D. Pa. July 24, 2008) (finding that the plaintiff had engaged in protected
activity under Title VII when he made an internal complaint to human resources). Termination
is an adverse employment action. Urbanic v. Donahoe, No. 11-CV-805, 2013 WL 1149914, at
*5 (W.D. Pa. Mar. 19, 2013) (“There is also no question that [a] termination decision constitutes
a materially adverse action.”); Johnson v. McGraw-Hill Cos., 451 F. Supp. 2d 681 (W.D. Pa.
2006) (observing that “a retaliatory discharge on the part of an employer would constitute a
‘materially adverse’ act of retaliation” under Burlington Northern & Sante Fe Railway Co. v.
White, 548 U.S. 53, 68 (2006)). Hence, Gethers must prove the third element of her prima facie
retaliation case: that “there was a causal connection between her participation in the protected
activity and the adverse employment action.” Nelson, 51 F.3d at 386. Courts “consider ‘a broad
array of evidence’ in determining whether a sufficient causal link exists to survive a motion for
summary judgment.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir.
2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000)).
A causation analysis often, but not exclusively, rests on two key factors:
temporal proximity between the protected activity and the alleged discrimination and (2) the
existence of any pattern of antagonism in the intervening period.” Jensen v. Potter, 435 F.3d
444, 450 (3d Cir. 2006) (internal quotations omitted). “The Court measures temporal proximity
from the date on which the litigant engaged in his first protect[ed] action.” Gairloch v. Pa. State
Univ., 84 F. Supp. 3d 407, 418 (M.D. Pa. 2015). “Timing alone raises the requisite inference
when it is ‘unusually suggestive of retaliatory motive,’ but even if ‘temporal proximity . . . is
missing, courts may look to the intervening period for other evidence of retaliatory animus.’”
Jensen, 435 F.3d at 450 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir.
1997)). In the absence of unusually suggestive temporal proximity or a pattern of antagonism,
courts “consider all of the proffered evidence as a whole to determine whether it ‘may suffice to
raise the inference’” of causation. Straka v. Comcast Cable, 897 F. Supp. 2d 346, 367 (W.D. Pa.
2012) (quoting Moore, 461 F.3d at 346); see also Farrell v. Planters Lifesavers Co., 206 F.3d
271, 280-81 (3d Cir. 2000) (“Although timing and ongoing antagonism have often been the basis
for the causal link, our case law clearly has allowed a plaintiff to substantiate a causal connection
for purposes of the prima facie case through other types of circumstantial evidence that support
With respect to temporal proximity, when “the temporal proximity between the protected
activity and the adverse action is ‘unusually suggestive,’ it is sufficient standing alone to create
an inference of causality and defeat summary judgment.” Id. (citing Breeden, 532 U.S. at 27374). “Although there is no bright line rule as to what constitutes unduly suggestive temporal
proximity, a gap of three months between the protected activity and the adverse action, without
more, cannot create an inference of causation and defeat summary judgment.” Id. at 233;
Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2007) (inference of causation not raised by
five-month gap between employee’s complaint and employer’s first adverse action).
Here, the time span between Gethers’s complaint to the ERIC and her termination is too
long as a matter of law for her to show a causal relationship between the two events. Gethers
reported Fahrion to the ERIC in August 2012. (Docket No. 44 at ¶ 79). PNC fired Gethers on
August 7, 2013. (Id. at ¶ 46). The time span between the ERIC receiving Gethers’s complaint
and her termination is approximately a year, far longer than the three-month gap in LeBoon and
the five-month gap in Andreoli. LeBoon, 206 F.3d at 233; Andreoli, 482 F.3d at 650; see also
Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751 (3d Cir. 2004) (holding that a period
of over two months between the protected activity and the plaintiff’s termination was not
sufficient alone to show a causal link); Thomas v. Town of Hammonton, 351 F.3d 108 (3d Cir.
2003) (holding that three weeks between the plaintiff’s filing of a complaint and her termination
did not demonstrate a causal link). As Gethers did not submit any other evidence tending to
show that PNC terminated her because she engaged in protected activity, she is not able to state a
prima facie case that PNC terminated her as retaliation for her complaint to the ERIC about
Second, Gethers is unable to establish a prima facie retaliation case linking her complaint
about Fahrion to PNC’s alleged resistance to her receipt of unemployment benefits. Like her
unsuccessful attempt to show that PNC fired her for complaining to the ERIC, Gethers is unable
to demonstrate a causal relationship between reporting Fahrion to the ERIC and her initial
difficulty in obtaining unemployment benefits.
As stated above, PNC terminated her
approximately a year after she asked the ERIC to investigate Fahrion’s decision not to promote
The Court notes that Gethers made complaints in her deposition that Fahrion would not approve classes for her,
saying that she had too much work. (Docket No. 57-2 at 6). On the other hand, she pointed to as part of her claim
of retaliation a class which she took and Siko did not. (Docket No. 46-1 at 76). Gethers failed to advance any
argument based on Fahrion’s action in these summary judgment proceedings. In this Court’s estimation, these
complaints do not rise to a level of retaliation, even when viewed in a light most favorable to her. At most, they
show that Fahrion did not satisfy the employee manual’s purpose to “[c]ounsel [employees] on how to correct or
improve [their] work performance, work habits or work-related behaviors.” (Docket No. 63-1 at 2).
her, (Docket No. 44 at ¶¶ 46, 79), a time period too long for Gethers to show that her complaint
caused PNC to obstruct her receipt of unemployment benefits.
LeBoon, 206 F.3d at 233;
Andreoli, 482 F.3d at 650.
Third, Gethers argues that Fahrion retaliated against her by becoming “very cold” at
work, by speaking less to her after she filed an internal complaint with the ERIC about his failure
to promote her. (Docket No. 46-1 at 17). To satisfy the adverse-employment-action element,
Gethers must “show that a reasonable employee would have found the alleged retaliatory actions
‘materially adverse’ in that they ‘well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Moore, 461 F.3d at 341 (quoting White, 548 U.S. at
68). Even assuming that Fahrion knew that Gethers complained about him to the ERIC and then
talked less to her, Gethers is unable to state a prima facie retaliation claim. See, e.g., Holt v.
Pennsylvania, No. 10-CV-5510, 2015 U.S. Dist. LEXIS 109311, at *67 (E.D. Pa. Aug. 19, 2015)
(granting motion for judgment as a matter of law and holding that the fact that a captain “had
given a cold response” to the plaintiff’s claims of race discrimination “was insufficient evidence
for the jury to reasonably conclude that race was a determinative factor”).
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. See,
e.g., McDonnell v. Cisneros, 84 F.3d 256, 258 (7th Cir. 1996) (implying in dicta that “the silent
treatment can cause distress” but is not a materially adverse employment action); see also
Nelson, 51 F.3d at 387-88 (holding that an adverse-employment action must affect the plaintiff’s
employment relationship with her employer rather than being generally objectionable conduct).
Without more, Gethers is unable to state a prima facie case that PNC, through Fahrion, retaliated
After considering Gethers’s retaliation arguments against the record, the Court concludes
that Gethers cannot establish a prima facie retaliation claim. Once again, there is no need to
discuss whether PNC had an LNDR or whether its LNDR was pretext for unlawful retaliation
against Gethers. Despite same, the Court remains convinced that Gethers and Jackson admitted
that they violated PNC’s code of ethics, which constitutes an appropriate LNDR for PNC to
terminate them. (See Docket Nos. 44 at ¶¶ 42-43; 46-5 at 10). See also Jackson, 2016 WL
7324595, at *7.
Gethers’s Belated Attempt to State a Failure-to-Promote Claim
To the extent that Gethers’s case could be read as a failure-to-promote claim, which PNC
disputes, Gethers is not able to proceed because the deadline to do so passed long ago, and
Gethers has not supported a failure-to-promote claim with any evidentiary proof.
allegedly passed over Gethers for a promotion on July 9, 2012. (Docket No. 46-3 ¶ 8). Charges
of employment discrimination must be filed with the EEOC “within  days after the alleged
unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1).9 Gethers has not provided
any evidence that she filed a failure-to-promote charge with the EEOC within 180 days after July
9, 2012, the day Fahrion chose not to promote her. Therefore, Gethers is time barred from
asserting a failure-to-promote claim.
This deadline would have been 300 days had Gethers initially lodged charges with a local or state agency, 42
U.S.C. § 2000e-5(e)(1), which she did not.
For the foregoing reasons, PNC’s Motion for Summary Judgment, (Docket No. 42), will
be granted, and Gethers’s Motion for Summary Judgment, (Docket No. 47), will be denied.
An appropriate Order follows.
Dated: May 9, 2017
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record.
Jalaine Gethers, pro se
518A North Negley Ave.
Pittsburgh, PA 15206
Certified and Regular
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