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Schwartzberg v. Mellon Bank

January 8, 2008


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently before the Court are the following:

* DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, with brief in support (Document Nos. 14 and 15, respectively) and the PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 21); and

* PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, with brief in support (Document Nos. 16 and 17, respectively), REPLY BRIEF IN OPPOSITION filed by Defendant (Document No. 19), and REPLY BRIEF TO DEFENDANT'S RESPONSE filed by Plaintiff (Document No. 23).

The issues have been fully briefed and the matter is ripe for disposition. After a careful consideration of the motions, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Court finds that there is not sufficient record evidence upon which a reasonable jury could return a verdict for Plaintiff, Albert (Avraham) Schwartzberg on his claims of religious discrimination and retaliation. Therefore, the Court will grant the Defendant's motion for summary judgment in its entirety and deny the Plaintiff's Motion for Partial Summary Judgment.


Plaintiff, Albert (Avraham) Schwartzberg ("Plaintiff") brought this lawsuit on July 27, 2006, by the filing of a six-count Complaint against his former employer, Mellon Bank, N.A. ("Mellon"), in which he asserted claims of religious and racial discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. § 951, et seq.

By Order of Court dated August 7, 2007, the Court granted Plaintiff's Motion for Voluntary Withdrawal of Counts V and VI, the claims which alleged racial discrimination.

Plaintiff contends that Mellon unlawfully discriminated against him on the basis of his religion (Hasidic Jew) when it issued him disciplinary warnings and denied him a wage increase, and then retaliated against him when it terminated his employment after he opposed such alleged discrimination.

Defendant has filed the instant motion for summary judgment in which it contends that it is entitled to judgment as a matter of law because, inter alia, Plaintiff is unable to establish (i) a prima facie case of religious discrimination and (ii) a prima facie case of retaliation.

Plaintiff has filed the instant motion for partial summary judgment in which he contends that he is entitled to judgment as a matter of law on his claims of religious discrimination. Plaintiff does not seek summary judgment on his retaliation claims.


As the law requires, all disputed facts and inferences are resolved most favorable to the Plaintiff.

Plaintiff was hired by Mellon in February 2002 as a Trust Operations Processor, a/k/a a Customer Relations Representative. He worked in a phone center and provided telephone-based customer service assistance to retirees who had questions or concerns about their pension benefits.

Plaintiff reported to Stephanie Fultz Wigenton, the Call Center Manager, who in turn reported to Demond Batie, the Unit Manager. Mr. Batie reported to Anthony Williamson, the Manager of the phone center and Manager of the Tax and Control department, who in turn reported to Marilyn Infante, the Manager of Benefits Disbursements.

Plaintiff, a practicing Orthodox Jew, was permitted to bring religious articles to work, including candles, was permitted to leave early on Fridays to observe the Sabbath, and was permitted to circumvent seniority for vacation scheduling purposes to allow him to observe any religious holidays.

Additionally, Mellon provided a number of accommodations to Plaintiff due to a visual impairment (Plaintiff is legally blind). He used a large closed circuit computer screen and special adaptive software that both magnified the text on his computer screen and allowed for voice activated typing.

Beginning in 2004, Mellon's Diversity Council permitted the creation of a number of affinity groups organized by Mellon employees for Mellon employees, to wit: HEART - the affinity network for people with disabilities; MORE - a multicultural affinity network; PRISM - the affinity network for gay, lesbian, bisexual and transgendered individuals; the Asian-American Affinity Network; and the Black/African-American Affinity Network. None of the affinity groups are exclusive and all Mellon employees are free to participate, or not, in the activities of any affinity group.

Plaintiff was a member of the HEART affinity network, which was co-chaired by Mellon employee Patricia Michaud.

On May 6, 2005, all Mellon Pittsburgh employees, including Plaintiff, received an interoffice email from the Mellon "Corporate Communications" Department in which all employees were invited to attend a luncheon hosted by the Parents, Families and Friends of Lesbians and Gays ("PFLAG") and Mellon's Gay, Lesbian, Bisexual and Transgender ("GLBT") affinity group, which is known as PRISM.*fn1

On or about May 11, 2005, all members of the Pittsburgh HEART affinity group, including Plaintiff, received the following email from Ms. Michaud:

Subject: PRISM Event

HEART Members - Just a reminder of this upcoming event sponsored by the PRISM affinity network. Please try to support this if your schedule permits.


Ms. Michaud testified in her deposition that "[i]t was [her] standing operating practice as co-chair to send reminders of this nature to HEART members anytime any of the other affinity networks had an event that was open to the public." Michaud Depo. at 14-15.

On May 13, 20005, Plaintiff responded to Ms. Michaud's email with the following email of his own:

To Patty:

This may or [sic] not be politically correct, but I strongly resent trying to lump all the affinity groups together!

People with disABILITIES have some real and often obvious challenges / problems. For i[n]stance, I use a closed TV to read printouts and have special adaptive software that will both enlarge and speak the computer screen.

If you happen to be black or purple or green. etc. or happen to have this sickness called gay or lesbian, just do your job. It has bee[n] 40 years since the Civil Rights Act and I notice a number of blacks in managerial positions here at Mellon. What business is it to me what someone does in their bedroom? As Mrs. Bender told our group, we as disABLED persons should get to work early and take a shower before we come in, i.e., be the most valuable worker you can be without asking for sympathy or a handout. What is the purpose of these other affinity groups anyway but to ask for a "break" or gift or approval or . . .

Sincerely, Abe Schwartzberg Ms. Michaud, who is gay,*fn2 found Plaintiff's email offensive and alerted Colleen Connors in the Human Resources ("HR") department. Ms. Connors is the primary HR liaison for the affinity networks. Ms. Michaud testified that she believed the email showed a lack of respect for other individuals. In particular, Ms. Michaud explained to Ms. Conners that she "was very concerned about the allusion to the GLBT population having a sickness."

Ms. Connors referred the matter to Carl Melella, the Director of Employee Relations, who in turn showed the email to Marilyn Infante, Manager of Benefits Disbursements, and Lisa Peters, Director of Human Resources.

On May 18, 2005, Plaintiff was summoned to a meeting with Mr. Melella, Ms. Infante, and Mr. Williamson, the manager of the phone center. During the meeting, Mr. Melella explained to Plaintiff that in Pittsburgh "it's illegal for a large employer to discriminate against people on the basis of their sexual orientation" and that the policy of Mellon was "to try to create an environment where people can do their best work and are not subjected to any type of hostility or harassment." Melella Depo. at 23.

Plaintiff was told that his email reply to Ms. Michaud could be offensive to employees. Mr. Melella and Ms. Infante stated that they respected employees "personal opinions," but that Mellon required all employees to treat co-workers with respect. Plaintiff was provided with a copy of Mellon's corporate policy on "Sexual and Other Discriminatory Harassment" which forbids discriminatory harassment, defined in the policy as follows:

[V]erbal or physical conduct that denigrates or shows hostility on the bases of race, color, religion, sex, age, national origin, marital or familial status, ancestry, citizenship, sexual orientation, gender identity, qualified disability, veteran or military status or other protected status when such conduct has the purpose or effect of unreasonably interfering with an employee's ...

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