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Zahavi v. PNC Financial Services Group

March 31, 2009


The opinion of the court was delivered by: Lenihan, M.J.


Doc. No. 34


Currently before the Court for disposition is Defendants' Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56(b) (Doc. No. 34). The only claim remaining in this employment discrimination case is Plaintiff's claim that PNC "regarded" her as disabled and terminated her employment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (1990) ("ADA"). Defendants request summary judgment in their favor on Plaintiff's "regarded as" disability discrimination claim on three grounds: (1) Plaintiff cannot establish that any decision makers regard her as disabled under the law as required to establish a prima facie case of discrimination; (2) Plaintiff cannot establish that any misconception about her physical or mental impairments caused or motivated her termination as required to establish a prima facie case of discrimination; and (3) even if Plaintiff could establish a prima facie case of "regarded as" disability discrimination, she can present no evidence to show that PNC's stated reason for her termination was a pretext for "regarded as" disability discrimination.

For the reasons set forth below, the Court will grant Defendants' Motion for Summary Judgment.


Plaintiff, Lorri Zahavi, was employed by Defendants, The PNC Financial Services Group, Inc. and PNC Bank, N.A. (collectively "Defendants" or "PNC") and their predecessors from 1984 until April 14, 2005. (PNC's Separate Stmt. of Undisputed, Material Facts in Supp. of Summ. J. (Doc. No. 36), ¶ 1.) At the time of her discharge, Zahavi held the position of Credit Analyst II (underwriter) with the Indirect Underwriting Team in the Consumer Underwriting Department within PNC's Consumer Loan Center. (Id. at ¶ 7.) Zahavi's direct supervisor was Michael Gallagher, Team Leader. Gallagher reported to the Underwriting Manager, Lou DeFalco. (Id. at ¶ 8.) In addition to Zahavi, PNC employed four other underwriters on its Indirect Underwriting Team ("Team"). (Id. at ¶ 9.) Zahavi's primary customers were automobile dealers, not consumers who were seeking the automobile loans. (Id. at 10.) Zahavi had a very good relationship with the automobile dealers, and they would often call her directly when another member of the Team denied an automobile loan application. (Doc. No. 36, ¶ 10; Zahavi Dep. at 107-09, 121-22.)

The loan application process utilized by the Indirect Underwriting Team can be summarized as follows. An automobile dealer would gather information from customers directly and enter loan applications into an electronic processing system, which PNC underwriters, such as Zahavi, could access. (Doc. No. 36, ¶ 11.) PNC underwriters then reviewed the data collected by the dealer to determine whether PNC should approve an automobile loan. (Id. at ¶ 12.) In deciding whether PNC should accept or decline the loan request, underwriters, including Zahavi, considered several factors to determine the borrower's ability to repay the automobile loan, which factors included the borrower's income, debt, personal credit scores, and overall credit worthiness. (Id. at ¶ 13.)

A crucial factor that the underwriters also considered was the borrower's debt ratio. The debt ratio is the percentage of the borrower's monthly gross income that goes toward paying debts. Under PNC's Maximum Debt Ratio Guidelines, an underwriter has no authority to approve a loan with a debt ration that exceeds 75%. (Id. at ¶ 14.) If the debt ratio exceeds the Maximum Debt Ration Guidelines, the underwriter is required to either decline the loan or seek a designated manager's approval. (Id. at ¶ 15.)

As a PNC employee, Zahavi was required to abide by PNC's Code of Ethics. (Doc. No. 36, ¶ 2.) Zahavi repeatedly agreed in writing that she had received, read, understood, and would comply with PNC's Code of Ethics. (Id. at ¶ 3.) PNC's Code of Ethics provides in pertinent part: "All PNC personnel shall maintain the highest standards of loyalty, care and candor in all matters relating to our shareholders, customers, employees and regulators." (Id. at ¶ 4.)

In addition, the PNC Bonding Requirements Policy provides that to continue employment with PNC, employees must remain eligible for coverage under PNC's fidelity bond. (Id. at ¶ 5.) The PNC Bonding Requirements Policy further provides that "bond coverage may terminate for any employee as soon as PNC learns of any dishonest or fraudulent act that was or may have been committed by the employee at any time, whether or not the act was committed while in PNC's employment." (Id. ¶ 6.)

On December 2, 2001, Zahavi was hospitalized for a brain aneurysm. Following a medical leave of absence, Zahavi testified that she returned to her position (within four months) at PNC without any restrictions. Zahavi admitted that her duties and responsibilities did not change when she returned from her medical leave. (Id. at ¶ 16.)

In September 2002, Zahavi underwent elective surgery to remove a second aneurysm from which she claims to have fully recovered except for having lost her sense of smell. (Id. at ¶ 17; Doc. No. 41 at ¶ 17.) Zahavi testified that after the second surgery, she did not have any cognitive difficulties, and with regard to her job profile, she was able to perform all of those functions/tasks, and she still had the same skills and abilities. (Zahavi Dep. at 64-66.) According to Zahavi, Gallagher never told her that she was unable to perform any of the functions required of her position or that her skills or abilities had diminished. (Doc. No. 36, ¶ 18.) Zahavi also admitted that from 2001 until her termination, Gallagher gave her positive performance evaluations. (Id. at ¶ 19.) Zahavi also admitted that Gallagher considered her a good employee. (Id. at ¶ 20.)

In 2002, DeFalco was involved with a work from home initiative and approved Zahavi's request to work at home following her surgery, as she satisfied the time on the job and productivity criteria. (DeFalco Dep. at 64-65.) At the time he approved the request, DeFalco stated he was not aware of the November 4, 2002 letter from Zahavi's neurosurgeon requesting that she be allowed to work from home, but believed her request was based on her belief that she could be more productive. (DeFalco Dep. at 65; Ex. 9 to DeFalco Dep.)*fn1 Gallagher and DeFalco always considered Zahavi to be one of the top producers of the Indirect Underwriting Team. (Id. at ¶ 21.) According to Zahavi, it was known on the Team that she processed "60 percent of the [loan] volume that walked in the door." (Id.)

After her surgery, Zahavi questioned her supervisors on several occasions when a new policy came into play that she did not think was quite right, and both DeFalco and Gallagher would respond, "you just don't get it." (Zahavi Dep. at 67, 70-74; DeFalco Decl., ¶ 6.) DeFalco and Gallagher made the same remark when she questioned their loan decisions. (Doc. No. 39, ¶ 17.) DeFalco admits that he sometimes would use that language with Zahavi, but he explained that she would just not accept that established policies had to be followed. (DeFalco Decl., ¶ 6.) According to Zahavi, when other underwriters raised similar questions at Team meetings, they were not addressed in that manner by DeFalco or Gallagher. (Zahavi Dep. at 228.) However, Zahavi further stated that she had no knowledge of whether DeFalco or Gallagher made comments like, "you just don't get it" to anyone else outside of those meetings. (Zahavi Dep. at 96.) DeFalco stated in his declaration that he spoke similarly with other underwriters when they failed to follow loan approval policies and procedures. (DeFalco Decl., ¶ 6.) Zahavi interpreted the comments, "you just don't get it," made by her supervisors, as references to diminished intelligence related to her aneurysms. (Zahavi Dep. at 187-88, 191-92.) However, she never reported any complaints of discrimination to anyone at PNC during her employment. (Id. at 162-63.)

In December of 2004, PNC's Risk Management Credit Review Department ("RMCR") performed a review of the indirect underwriting department and provided a draft report to DeFalco for his response prior to finalizing the report. (Pl.'s Counterstmt. of Mat. Facts (Doc. No. 39), ¶ 8.) One of the findings cited in the draft RMCR December 2004 report was that 27 errors had been made by the indirect underwriting department in evaluating used cars as collateral, referred to as the "loan to value" or "LTV," of which 14 were attributable to Zahavi, and the remaining 13 were evenly distributed to the other underwriters in the Team. (DeFalco Dep. at 33-36.) On the basis of that finding, DeFalco and Gallagher met with Zahavi on January 20, 2005, to discuss this finding and issued a verbal warning to Zahavi. (Doc. No. 39, ¶ 10.) DeFalco and Gallagher also requested an individual targeted review of her loans from RMCR. (Id.) DeFalco testified that Gallagher also counseled the other underwriters who made errors noted in the draft RMCR report. ((DeFalco Dep. at 37.)

On January 31, 2005, Zahavi received a performance review for the calendar year 2004, which indicated that "[a]lthough indirect exception rates came in above management's expectations at 14.85%, overall credit quality remained strong. Lorri continues to do a good job with her recognition of policy exceptions and overrides. She supports her exceptions and overrides with sufficient documentation, but improvement needs to be made in the area of calculating used car values." (Ex. 2, DeFalco Dep. (Doc. No. 39-4).) She was given an overall performance rating of "Achieves" for 2004. (Id.)

On or about March 17, 2005, after RMCR's completion of the targeted review of Zahavi's loans, DeFalco and Gallagher met with Zahavi again to discuss the results. (Doc. No. 39, ¶ 11.) The targeted review indicated that any problem with LTV calculations had been reduced to acceptable limits, although there were some "irregularities" with regard to "netting" and "grossing" of income, those irregularities were discussed with the department as a whole later in the meeting and were not the subject of a verbal warning to Zahavi. (Id. at ¶ 12.)

Also in March of 2005, Gallagher and DeFalco met with Zahavi to discuss complaints from two other underwriters on the Team, indicating that dealers were contacting Zahavi to review loans that the other underwriters had denied and she was approving them, and thus, undermining their credibility and authority.*fn2 (DeFalco Dep. at 42-43; Zahavi Dep. at 106-07, 199-120.) According to DeFalco, PNC's standard underwriting practice was that if a dealer called a different underwriter than the one who originally processed the loan application to appeal the original underwriter's decision, and if additional information was obtained from the dealer which indicated the loan could be approved, the new information was to be referred to the original underwriter first for reconsideration.*fn3 (DeFalco Dep. at 43.) Zahavi ...

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