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Carter v. A.T.&T. Broadband/Comcast

August 29, 2008


The opinion of the court was delivered by: Conti, District Judge


In this memorandum opinion, the court considers the motion for summary judgment filed by defendant AT&T Broadband/Comcast ("Comcast" or "defendant"), with respect to all claims asserted by plaintiffs Barry Carter ("B. Carter ") and Randi Carter ("R. Carter" together with B. Carter "plaintiffs") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. ("Title VII") and the Pennsylvania Human Relations Act, 43 PA. CONST. STAT. ANN. §§ 951 et seq. ("PHRA"). In the complaint, B. Carter asserts claims against Comcast of race discrimination and retaliation under Title VII and the PHRA. R. Carter asserts third-party retaliation claims under Title VII and the PHRA against Comcast based upon B. Carter's protected activity. After considering the joint concise statement of material facts ("J.C.S.") and the submissions of the parties, the court will grant summary judgment in favor of defendant with respect to all claims asserted by plaintiffs for the reasons set forth below.

Factual Background and Procedural History

Plaintiff B. Carter is an African-American male. (Pls.' Compl. ¶ 36.) B. Carter became an employee of Comcast on February 21, 2000, when he accepted a position as a customer service sales representative ("CSSR"). (J.C.S. ¶ 1.) Thereafter, he moved to a position in the telephone repair department. (Id.) On June 10, 2001, he became a CSSR or agent in Comcast's retention department. (Id.) During his employment at Comcast, B. Carter was chosen to perform various supervisory tasks and worked as a "help desk," where employees would ask his assistance in performing tasks. ( Barry Carter Dep., Mar. 21, 2007 "B. Carter Dep." 186:1-8; 18-25.)

In June 2001, upon moving to the retention department, B. Carter was supervised by Maura Booher ("Booher"). (J.C.S. ¶ 1.) Agents in the retention department answer incoming calls from customers who want to disconnect or downgrade their existing cable service with Comcast. (Id. ¶ 11.) It is the job of the retention agent to convince the customer not to disconnect or downgrade their cable service. (Id.) The job performance of agents in the retention department is measured by the agent's ability to meet certain departmental goals, which are all related to the number of customers the agent was able to retain or save. (Id. ¶ 12.) Agents are also evaluated based on their telephone statistics in that they are expected to spend 78% of their time speaking with customers. (Id.) Agents who fail to meet these departmental goals are subject to Comcast's progressive discipline procedures. (Id.)

The first step in Comcast's progressive discipline procedure is a "coaching" session by the agent's supervisor for the initial failure to meet one of the departmental goals or for attendance-related matters. (Id. ¶ 13.) Continued failure to meet the same departmental goal or violation of an attendance policy results in a verbal warning, followed by a written warning, final written warning, and then termination for repeated failure to meet a particular goal. (Id.) At Comcast, disciplinary actions are measured on a rolling twelve-month calendar. (Id. ¶ 14.) The rolling twelve-months begin with the first occurrence of a behavior warranting disciplinary action. (Id.) Supervisors are permitted to bypass certain steps in the progressive discipline procedures in certain instances. (Id. ¶ 15.) For example, in the retention department, if an agent is found to be deliberately avoiding taking calls from customers, the agent may receive an immediate final written warning and a one-day suspension. (Id.)

On or about February 15, 2002, B. Carter met with Comcast's human resources representative, Bernice Gillium ("Gillium"), and initiated a complaint of discrimination for being denied a promotion opportunity allegedly based on his race. (Pls.' Compl. ¶ 36.) During this conversation, no other individual was present in the room. (B. Carter Dep. 81:5-12.) In addition to speaking with Gillium, B. Carter spoke with Corky Croft, another human resources employee, and emailed Cynthia Hilquist, the vice president of Comcast. (Id. 79:1-8.) B. Carter filed a complaint with the Pennsylvania Human Relations Commission ("PHRC"), which cross filed the complaint with the Equal Employment Opportunity Commission ("EEOC"). (Id. 80:19.)

Later in February 2002, a supervisor position in the outbound sales department was advertised on Comcast's internal website. (J.C.S. ¶ 3.) Comcast employees interested in the position were instructed to apply online and include a copy of their resume. (Id.) A list of all applicants and their resumes were forwarded to Cathy Kopanic-Enright ("Enright"), the outbound sales manager, to select a candidate to fill the position. (Id.) Enright interviewed the various candidates, including B. Carter, and because the job required analysis of reports and calculation of commissions, each candidate was given a short test requiring him or her to demonstrate basic math skills. (Id. ¶ 4.)

Based upon the interviews and results of the mathematics test, Enright testified Guinevere Mullin ("Mullin") was selected to fill the position in April 2002 because she scored higher than B. Carter on the exam. (Id. ¶ 5.) After making that selection, Enright met individually with all the Comcast employees who applied for the position, including B. Carter. (Id. ¶ 6) At the time she made her selection, Enright claims that she had no knowledge that B. Carter had made an internal complaint of discrimination. (Enright Decl. ¶ 8.)

In March 2002, a second supervisor position was created in the retention department. (J.C.S. ¶ 7) Mary Ann Spirnak ( "Spirnak"), the manager of the retention department, was charged with selecting a candidate to fill this position, and interviewed eleven of the seventeen candidates that applied. (Id.) The candidate pool consisted of Caucasian and African-American men and women. (Id.) B. Carter applied for this position and was interviewed by Spirnak (Id.) Throughout the interview process, Spirnak averred she sought an applicant who had supervisory experience, was a good performer, possessed knowledge of the retention department, and had good statistics with respect to saving/retaining customers. (Spirnak Decl. ¶ 6.) Initially, Spirnak offered the position to Leighton Seawright, an African- American Comcast employee, who was a supervisor in the customer service department. (J.C.S. ¶ 8.) Seawright declined the position by reason of the hours he would be required to work. (Id.)

Spirnak's next choice was Darlene Bauer ("Bauer"), a Caucasian female, who was one of the original members of the retention department. (Id. ¶ 9.) Spirnak believed that Bauer was more qualified for the position than B. Carter because Bauer had been considered a "lead amongst her peers," had already assisted with some supervising responsibilities, and had a higher over all save rate average than B. Carter. (J.C.S.¶ 9; Spirnak Decl. Exs. B, C.) B. Carter contends that Bauer was not considered to be a lead amongst her peers and did not possess more supervisory experience. (J.C.S. ¶ 9.) At the time Spirnak offered the position to Bauer, she testified that she had no knowledge of any discrimination complaint made by B. Carter. (J.C.S. ¶ 10.)

In April 2002, Booher learned that two Comcast retention agents, Thomas Donovan and Ashley Zearott had been deliberately avoiding taking customer calls which is referred to as "call avoidance." (J.C.S. ¶ 16.) Donovan and Zearott were given final written warnings and a one-day suspension. (Id.) In late May or early June 2002, Booher learned that B. Carter had also avoided taking customer calls. (Id. ¶ 17.) B. Carter was given a final written warning and a one-day suspension. (Id.) When Booher met with B. Carter on June 5, 2002 to inform him of his suspension, B. Carter told her about the internal discrimination complaint he had filed with Comcast's human resources department earlier that year. (Id.) In addition to his suspension, on November 24, 2003, B. Carter received coaching for a tardy/shift interruption, along with a variety of other performance-related issues. (Def.'s Exs. D9-D34.)

In May 2003, Ranata Roberts ("Roberts"), an African-American agent in the retention department, was promoted to an open supervisor position in that department, and became B. Carter's immediate supervisor. (J.C.S. ¶ 18.) B. Carter had trained Roberts at one point in time, in an effort to raise her save rate performance and he performed at the company's required performance rating. (B. Carter Dep. at 56:22.) Beginning in the fall of 2003, Roberts claims that B. Carter's performance began to take a sharp decline. (J.C.S. ¶ 19) During this time, B. Carter was having difficulty understanding how to classify correctly his customers' calls. (Pls.' App. A at 57.) B. Carter alleges that he failed to achieve Comcast's performance criteria because his supervisors refused to explain his shortcomings or address his concerns. Roberts issued B. Carter a number of disciplines for his continuing failure to meet the retention department's goals with respect to both save rate performance and telephone statistics. (J.C.S. ¶ 20.) In a corrective discipline memorandum dated November 10, 2003, for the monthly period of September 22, 2003 through October 21, 2003, B. Carter's monthly save rates were 38.7% (video downgrade), 23.7% (video disconnect), 21.1% (HSD disconnect) and the department's minimum requirements were respectively 55% (video downgrade), 30% (video disconnect), and 35% (HSD disconnect). As a result, he was given a verbal warning and continued performance monitoring. Following the November 10, 2003 disciplinary action, B. Carter received six more discipline memorandums for failing to meet the department's minimum requirements over the following two months. (B. Carter Dep. Exs. 21-29.)

As a result of B. Carter's continued failure to meet the departmental goals, by letter dated February 6, 2004, he was offered mandatory two weeks of training by Booher, who was now the manager of the retention department, or face termination. (J.C.S. ¶ 21.) B. Carter accepted the training. (Id.) After the training, B. Carter was still unable to meet the departmental goals with respect to the save performance rate and telephone statistics. (Id. ¶ 22.) Due to his job related stress, B. Carter was hospitalized. (B. Carter Dep. 90:17; 95:20.) On August 26, 2004, B. Carter met with Roberts, Booher, and Corky Croft. (J.C.S. ¶ 23.). At this meeting, B. Carter was terminated and presented with his final corrective action discipline memorandum describing the reasons for his termination. (Id.)

R. Carter began her employment with Comcast on June 12, 2000 as a data entry clerk and married B. Carter in October 2001. (Id. ¶ 24.) In March 2001, R. Carter moved to the retention department, and in June 2002 became pregnant. (J.C.S. ¶ 24.) Because complications occurred during her pregnancy, R. Carter applied for and was approved to take a leave pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq. (J.C.S. ¶ 27) on an intermittent basis starting in June 2002. (J.C.S. ¶ 26.) In early 2002, R. Carter was confined to bed rest and her twelve-week FMLA leave expired before the end of December 2002. (J.C.S. ¶ 27.) Upon returning as an agent in the retention department in March 2003, R. Carter was absent from work because she could not make childcare arrangements. (J.C.S. ¶ 30.) By letter dated March 28, 2003, R. Carter was told that Comcast considered her to be on unapproved leave and that if she did not report to work on March 31, 2003, she faced possible termination; she did not return to work. (J.C.S.¶ 31.) By letter dated March 31, 2003, Comcast gave R. Carter another chance to save her job if she returned to work by April 2, 2003; she again did not return to work. (J.C.S. ¶ 32.) By letter dated April 7, 2003, R. Carter was advised that her employment with Comcast was terminated because of her failure to return to work. (J.C.S. ¶ 33.)

Plaintiffs timely filed complaints with the PHRC and the EEOC, respectively, under the PHRA and Title VII, claiming illegal job discrimination and retaliation for the filing of the discriminatory complaints. Having received a right to sue letter, on January 1, 2006, plaintiffs commenced the above-captioned civil action in the Court of Common Pleas of Allegheny County. In the complaint, B. Carter alleged that he was illegally discriminated against when in 2002 Comcast failed to promote him to two separate supervisory positions. B. Carter also claims that Comcast illegally retaliated against him when he filed his internal racial discrimination complaint with the company in 2002. R. Carter claims that she was terminated in retaliation for her husband's discrimination complaint. The action was removed by defendant to this court, and on September 20, 2007, defendant filed the present motion for summary judgment.

Standard of Review

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249.

The Supreme Court held in Celotex Corp v. Catrett, 477 U.S. 317 (1986), that:

In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."

Id. at 324 (emphasis added). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).



B. Carter's Claims

A. Discrimination Claims

1. Burden-Shifting Framework

Title VII*fn1 was enacted to prohibit employers from discriminating against employees with respect to compensation, terms, conditions, or privileges of employment. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). The Supreme Court recognized that it is often difficult for a plaintiff to prove that an employer acted with "conscious intent to discriminate." McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). One manner in which a plaintiff can meet this ultimate burden of persuasion is by demonstrating that an employer's ...

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