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Thompkins v. PNC Bank

October 15, 2010


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge



Before the Court is Defendant‟s Motion for Summary Judgment filed pursuant to Fed. R. Civ. P. 56 (doc. no. 35). Plaintiff, Clarence Thompkins, claimed Defendant, PNC Bank d/b/a PNC Financial Services, harassed and discriminated against him because of his race, gender, and age, and then retaliated against him when he opposed said treatment. Plaintiff sued Defendant under Title VII of the Civil Rights Act of 1991, 42 U.S.C. " 2000(e) et seq., the Age Discrimination in Employment Act (AADEA@), 29 U.S.C. ' 621 et seq., and the Pennsylvania Human Relations Act (APHRA@), 43 Pa.C.S.A. ' 951 et seq. See Complaint at doc. no. 1-1.

Plaintiff‟s Complaint alleged Defendant subjected him to disparate treatment, harassment, humiliation, discrimination, and a hostile work environment based on his age, sex/gender, and/or race. Doc. no. 1-1. Plaintiff‟s Complaint outlined several discrete events which he claims exemplify this negative treatment. Id. After Defendant answered Plaintiff=s Complaint, the parties engaged in discovery.

Defendant now moves this Court to enter judgment in its favor on the following bases: (1) the alleged discriminatory acts occurring in 2006 and 2007 fall outside the applicable statute of limitations and are thus time-barred; (2) plaintiff failed to exhaust his administrative remedies with respect to the alleged discriminatory acts occurring in 2009 and 2010, and thus, these are now barred; (3) there are no issues of material fact for a fact finder to consider with respect Plaintiff‟s remaining claims.

Plaintiff responds (see doc. no. 42) by asserting that his claims are not subject to 300-day statute of limitations because they are cumulative in nature and cannot be categorized as "discrete acts." Plaintiff argues that all his claims were timely filed and all actions taken by Defendant fall within the scope of the original claim.

After carefully considering the submissions of both parties, this Court will grant Defendant‟s Motion for Summary Judgment for the reasons that follow.


Defendant hired Plaintiff on May 1, 2006, for the position of "recovery specialist." Doc. no. 1-1, ¶ 5, Doc. no. 37 ¶ 1. Plaintiff was 54 years old when he was hired by Defendant. Doc. no. 1-1, ¶ 6, and doc. no. 37, ¶ 1. Generally, Plaintiff‟s job duties required him to recover loans or other indebtedness due to Defendant or its third-party customers, including Capital One. Doc. no. 1-1, ¶ 5. Plaintiff was paid on an hourly and a commission basis. Doc. no. 1-1, ¶ 6.

In July of 2006, Darlene Davis, a caucasian female was promoted to a Team Manager position and was responsible for managing a team of recovery specialists, including Plaintiff. Doc. no. 37, ¶ 3, doc. no. 43, ¶ 3. In June of 2007, Capital One terminated its contract with PNC. Doc. no. 37, ¶ 6, doc. no. 43, ¶ 6. Plaintiff, along with a few additional PNC employees, continued to work on remaining unsecured Capital One accounts and PNC unsecured accounts. Id.

In September of 2007, PNC adjusted Plaintiff‟s goal to an amount three times what it had been in the previous quarter. Doc. no. 37, ¶ 8; doc. no. 43, ¶ 8. Plaintiff met this higher goal. Doc. no. 37, ¶ 9; doc. no. 43, ¶ 9. In 2008, PNC adjusted Plaintiff‟s goal downward. Id. Plaintiff earned incentives through the end of October 2008. Doc. no. 37, ¶ 10; doc. no. 43, ¶ 10.

Between January 2007 and December of 2008, Plaintiff applied for a number of job openings within PNC. Doc. no. 37, ¶ 11; doc. no. 43, ¶ 11. Only one of the positions he applied for involved collections or recovery work. Id. Plaintiff applied for a position within the Consumer Loan Center as a "collection/recovery team manger." Doc. no. 37, ¶ 13. Defendant did not hire Plaintiff for any of the positions to which he applied. Doc. no. 37, ¶ 12; doc. no. 43, ¶ 12. Defendant hired another African-American male, over the age of 40, for the "collection/recovery team manger" position. Doc. no. 37, ¶ 14; doc. no. 43, ¶ 6.

On December 19, 2008, Plaintiff dually filed a charge with Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Rights Commission ("PHRC") alleging discrimination based on race, sex, and age and also claimed retaliation. Doc. no. 37, ¶ 22; doc. no. 43, ¶ 22. The EEOC issued a Right to Sue letter on August 31, 2009. Doc. no. 37, ¶ 25; doc. no. 43, ¶ 25.

On February 2, 2010, Defendant issued a written warning to Plaintiff for inappropriate and unprofessional interactions with customers during telephone calls. Doc. no. 37, ¶ 35; doc. no. 43, ¶ 35. Defendant has a policy of not paying incentives to employees who are "on corrective action" and thus, did not pay Plaintiff any incentives for February and March of 2010 due to the written warning. Doc. no. 37, ¶ 36; doc. no. 43, ¶ 36.

Plaintiff contends that Defendant harassed and/or retaliated against him by monitoring his telephone calls with customers. Doc. no. 37, ¶ 34; doc. no. 43, ¶ 34. Plaintiff admitted that he agreed, in writing, to Defendant‟s "Consumer Lending Telephone Monitoring" policy under which Defendant was permitted to randomly monitor calls to determine if the calls were being conducted in a proper manner. Id.

Plaintiff essentially admitted during his deposition that no one at PNC discriminated against him because of his sex/gender and abandoned his discrimination claims based on sex/gender. Doc. no. 37, ¶ 27; see also, doc no. 43-6, pp. 126:1-10, 127:1-7. Plaintiff also admitted during his deposition that he was only speculating that his race and/or age played a role in Defendant‟s decisions with respect to his employment. Doc. no. 37, ¶ 31; doc. no. 43, ¶ 31.

Plaintiff does allege that Defendant gave preferential treatment to Brenda Mullholland-Duran and Ken Hafner by allowing them to work on secured real estate accounts in the Fall of 2009 and Spring of 2010. (Doc. no. 37, ¶ 37). Plaintiff also claimed during his deposition that Defendant was unfair to him when Lori Pegher was assigned to work secured accounts. (Doc. no. 37, ¶ 37). Plaintiff did not know any of their qualifications or work history, nor the criteria Defendant used to make these assignments. (Doc. no. 37, ¶ 37).

In addition, Plaintiff has asserted that in retaliation for his filing the EEOC charge, his supervisor, Team Manager Darlene Davis, rejected his proposals to settle some of his accounts for 20% to 25% of their outstanding debt. Doc. no. 37, ¶ 32; doc. no. 43, ¶ 32. During his deposition, Plaintiff admitted that Defendant has a policy which provides that accounts may not be settled for less than 35% without first obtaining Manager approval, and even then, they must be supported by documentation supporting the reason for settlement. Doc. no. 37, ¶ 33; doc. no. 43, ¶ 33.


Summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2).

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. Fed. R. Civ. P. 56(e)(2).

To demonstrate entitlement to summary judgment, defendant, as the moving party, is not required to refute the essential elements of the plaintiff‟s cause of action. Defendant needs only point out the absence or insufficiency of plaintiff‟s evidence offered in support of those essential elements. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Once that burden has been met, plaintiff must identify affirmative evidence of record that supports each essential element of his cause of action. If plaintiff fails to provide such evidence, then he is not entitled to a trial, and defendants are entitled to summary judgment as a matter of law. Id.

While summary judgment is typically disfavored in employment discrimination cases, it is appropriate when a plaintiff relies on mere inferences, conjecture, speculation or suspicions. See Anderson v. School District of Philadelphia, 1998 U.S. Dist. LEXIS 4232, 1998 WL 151034, *5 (E.D. Pa. 1998). Similarly, summary judgment may not be granted if there is a disagreement over what inferences can be reasonably drawn from the facts, even if the facts are undisputed. Ideal Dairy Farms, Inc. v. John Labatt. Ltd., 90 F.3d 737, 744 (3d Cir. 1996), citing Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1381 (3d Cir. 1991). Moreover, "any unexplained gaps in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment." Ideal Dairy Farms, 90 F.3d at 744, quoting Ingersoll-Rand Financial Corp. v. Anderson, 921 F.2d 497. 502 (3d Cir. 1990)(quoting O‟Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir.1989)).

Finally, we do not distinguish between the claims under federal and Pennsylvania law in our disposition of this case as the standards are the same for purposes of determining the summary judgment motion. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.1996).

In summary, the inquiry under a Rule 56 motion is whether the evidence of record presents a genuine dispute over material facts so as to require submission of the matter to a jury for resolution of that factual dispute or whether the evidence is so one-sided that the movant must prevail as a matter of law. It is on this standard that the court has reviewed Defendant‟s motion and Plaintiff‟s response thereto.


Because Plaintiff admitted during his deposition that no one at PNC discriminated against him because of his sex/gender, the Court will grant summary judgment to Defendant with respect to these claims, and will focus the remainder of this Opinion on Plaintiff‟s age, race, retaliation and hostile work environment claims.

A. Acts Occurring in 2006 and 2007 are Time-Barred

The filing of a charge with the EEOC and receipt of a notice of the right to sue are prerequisites to a civil action under Title VII. Hicks v. Abt Assocs., 572 F.2d 960, 963 (3d Cir. 1978). In order to proceed under Title VII in Pennsylvania, an employee has 300 days from the date of the occurrence of the discriminatory employment practice in which to file a charge with the EEOC. 42 U.S.C. ' 2000e-5(e) (1988); accord, Watson v. Eastman Kodak Co., 235 F.3d 851 (3d Cir. 2000)(holding that a charge of discrimination must be filed with the EEOC or PHRC within 300 days of the alleged discriminatory action).

This time period for filing a charge is subject to equitable doctrines such as tolling or estoppel. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Courts may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly. Id. at 113-114, citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, (1984) (per curiam) ("Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants").

The continuing violations doctrine is a similar concept. Yeager v. UPMC Horizon, 698 F.Supp.2d 523, 540 (W.D.Pa. 2010). The continuing-violations doctrine applies where "a defendant‟s conduct is part of a continuing practice." Brenner v. Local 514, United Brotherhood of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991). Where an otherwise untimely action is based upon a continuing practice, a court will make an exception "so long as the last act evidencing the continuing practice falls within the limitations period." Id. A series of discrete and identifiable actions does not in and of itself constitute a continuing violation. Van Cleve v. Nordstrom, Inc., 64 F.Supp.2d 459 (E.D.Pa. 1999). The continuing violation theory was developed "[t]o accommodate . . . more indeterminate situations," as opposed to "more inflexible" cases in which "there is a discrete trigger event." West v. ...

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