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Wareham v. Dollar Bank

United States District Court, W.D. Pennsylvania

March 29, 2013

ROBERT J. WAREHAM, Plaintiff,
v.
DOLLAR BANK, Defendant

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For ROBERT J. WAREHAM, Plaintiff: Melvin L. Vatz, LEAD ATTORNEY, Grossinger Gordon Vatz, LLP, Pittsburgh, PA.

For DOLLAR BANK, Defendant: Robert F. Prorok, LEAD ATTORNEY, Lisa Lynne Garrett, Cohen & Grigsby, P.C., Pittsburgh, PA.

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ECF No. 30

LISA PUPO LENIHAN, Chief United States Magistrate Judge.

Currently before the Court for disposition is Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 and Western District of Pennsylvania Local Rule 56.1 (ECF No. 30). In this employment discrimination case, Plaintiff, Robert J. Wareham, asserts he was terminated by his former employer, Dollar Bank, based on his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (" ADEA" ), and based on the expression of his religious beliefs in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 et seq. , (" Title VII" ). In his Brief in Opposition to Defendant's Motion for Summary Judgment (" Pl.'s Br. in Opp'n" ), Wareham now consents to the dismissal of his remaining common law claim for defamation in Count IV of the Complaint, and concedes that his discrimination claims under the Pennsylvania Human Relations Act (" PHRA" ), 43 Pa. Cons. Stat. § 951 et seq. in Count III are untimely.[1] Pl.'s Br. in Opp'n at 1 n. 1 (ECF No. 40). This Court has subject matter jurisdiction over Plaintiff's remaining federal law claims pursuant to 28 U.S.C. § 1331.

Dollar Bank moves for summary judgment in its favor on Plaintiff's age and religion based discrimination claims, arguing that Wareham has failed to establish a prima facie case of discrimination based on religion. In addition, Dollar Bank argues that Wareham has failed to prove that Dollar Bank's articulated legitimate, non-discriminatory reasons for terminating him were a pretext for age discrimination and that age was the " but-for" cause of his termination.

I.RELEVANT FACTS[2]

Founded in 1855, Dollar Bank is a regional financial services organization which serves individual and business customers throughout Western Pennsylvania and Northeastern Ohio with more than 50 offices and loan centers throughout the Pittsburgh and Cleveland metropolitan areas. (McQuade Aff. 2, Def.'s App. Tab A, ECF No. 33-1.) As a savings association, Dollar Bank is required to comply with federal banking regulations and certain

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guidelines promulgated thereunder,[3] which address standards for developing and implementing safeguards from an administrative, technical, and physical standpoint to protect the security, confidentiality, and integrity of customer information.[4] (McQuade Aff. ¶ ¶ 3-4.) These Guidelines also address standards with respect to Dollar Bank's proper disposal of consumer information.[5] (McQuade Aff. ¶ 4.) In addition, the Guidelines also require Dollar Bank to implement a comprehensive written information security program that includes administrative, technical, and physical safeguards appropriate to its size and complexity and the nature and scope of its activities. (McQuade Aff. ¶ 5.) Dollar Bank must also exercise appropriate due diligence when selecting its service providers. (McQuade Aff.¶ 6.)

Part 573 of the federal banking regulations sets forth privacy notice requirements including requirements for Dollar Bank to disclose nonpublic personal information about a consumer to a non--affiliated third-party. (McQuade Aff.¶ 7.) Dollar Bank chose not to send declined consumer loans to non--affiliated third parties as the easiest and most comprehensive way to ensure the protection of nonpublic consumer information. (McQuade Aff. ¶ 8.) Large finance companies have offered to pay Dollar Bank for its declined consumer loan applications but Dollar Bank has declined those offers. (McQuade Aff. ¶ 9; Park Aff. ¶ 9, Def.'s App. Tab B, ECF No. 33-2.)

Wareham was hired by Dollar Bank in March 1994 as a Senior Loan Representative (Pl.'s Dep. At 12 - 13 & Ex. 2 thereto, Def.'s Tab C, ECF No. 33 - 3), and was promoted to Assistant Vice-President, Loan Centers, effective December 1, 1999 (O'Rorke Aff.¶ 3, Def.'s Tab D, ECF No. 33 - 4). James McQuade, Senior Vice-President, began supervising Wareham in 2003. (McQuade Dep. at 10, 44, Def.'s Tab E, ECF No. 33 - 5.) McQuade completed Wareham's performance evaluations for 2006 through 2008, and rated his overall performance as exceeds expectations in each of those years. (Exs. 14, 15 & 16 to Pl.'s Dep., Def.'s Tab C, ECF No. 33-3 at 46 - 56.) In the performance evaluation completed on 1/5/07, McQuade recommended that Wareham be promoted to Vice-President, Loan Centers, effective January 2007. (Ex. 14 to Pl.'s Dep., ECF No. 33 - 3 at 46 - 47.) McQuade made the decision to retain Wareham since 2003 and gave him annual salary increases during that time, except for 2004 when McQuade's supervisor rejected his recommendation to increase Wareham's salary. (McQuade Dep. at 47 - 48, Def.'s App. Tab E, ECF No. 33 - 5; Small-Carroll Dep. at 49 - 51, Def.'s App. Tab F, ECF No. 33 - 6.)

Beginning in approximately 1996 and continuing until his termination in December of 2009, Wareham developed a cross-referral relationship with Dave Alt, a licensed

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mortgage broker and partner with Three Rivers Mortgage Services Co. (Pl.'s Dep. at 45, Pl.'s App. Tab 2, ECF No. 39-3; Alt Dep. at 10-11, 16-17, Def.'s App. Tab M, ECF No. 33-13 & Pl.'s App. Tab 6, ECF No. 39-7.) Alt's business included, inter alia, servicing customers with credit histories that were not acceptable to Dollar Bank--customers with " B, C, and D" credit. (Alt Dep. at 9, 81, Pl.'s App. Tab 6; Pl.'s Dep. at 45-47, Pl.'s App. Tab 2.) Wareham introduced Alt to loan center employees in Pittsburgh and Cleveland and asked them to refer their declined loans to Alt. Wareham maintains that he instructed the loan center employees that they should only refer declined loan customers to Alt if the customer requested it and authorized the release of their personal information. Customer authorizations were obtained verbally and usually communicated to Alt via telephone.

Wareham did not provide loan center employees with any instructions, nor did he implement any procedures, on how to refer the declined loans to Alt. In addition, there was no written agreement between Alt/Three Rivers Mortgage and Dollar Bank governing the referral relationship established by Wareham and Alt, no background check performed on Three Rivers Mortgage or Alt, and no written authorizations obtained from customers prior to releasing their personal information to Alt.

While employed at Dollar Bank, Wareham prepared monthly memoranda which set forth, inter alia, his marketing efforts and efforts to develop referral relationships in order to generate loan business. (Pl.'s Dep. at 76-79; McQuade Dep. at 54-55.) In these memoranda, Wareham mentions a referral relationship with Alt, but all of the references are general in nature. For example, the memos mention meetings with Alt and a third party to generate a new source of loan referrals to Dollar Bank, occasions where Wareham took Alt to Dollar Bank loan centers where he met with loan center employees, and occasions where Alt invited Wareham to attend golf outings and sporting events. See Wareham Memos dated 4/30/07, 10/20/07, 11/14/07, 12/17/07, and 1/10/08 (Pl.'s App. Tab 5, ECF No. 39-6). In one such memorandum, Wareham describes Alt as the bank's " most consistent source of referral business. He is able to get deals done that we can not. He cleans them up and sends them back." Wareham Memo dated 1/10/08 (Pl.'s App. Tab 5, ECF No. 39-6 at 14.) Wareham initially sent these memoranda to Ed Brown,[6] his direct supervisor for a couple of years, and then to McQuade after he took over as Wareham's direct supervisor in 2003. (Pl.'s Dep. at 20-21, Pl.'s App. Tab 2, ECF No. 39-3; Wareham Memos, Pl.'s App. Tab 5.)

Wareham also met monthly with the Loan Center Committee (" LCC" ), which

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was comprised of vice-presidents from various departments plus his direct supervisor, although McQuade did not regularly attend the LCC meetings. (Smith Dep. at 11-13, Def.'s App. Tab J, ECF No. 33-10.) At these meetings, Wareham made a report on loan center operations and advised the LCC of his marketing and business development efforts. (Pl.'s Aff. ¶ ¶ 11-12; Smith Dep. at 11-13.) One of the members of the LCC was Joseph Smith, Senior Vice President of Marketing for Dollar Bank. (Smith Dep. at 5.) Smith did not supervise Wareham in any way. (Smith Dep. at 7.)[7] The loan center staff and Wareham had no direct report relationship with marketing, which was in a separate division. (Smith Dep. at 7-8, 10.) However, Wareham had regular communications with Smith regarding loan center marketing budgets as it related to his marketing spending. (Smith Dep. at 8-11, Def.'s Supp. App. Tab F, ECF No. 43 at 29-32.)

Wareham regularly wore a cross lapel pin throughout the duration of his employment. (Wareham Dep. at 171.) In addition to regularly wearing a cross lapel pin, Wareham routinely expressed his deeply held religious beliefs based upon his Christian faith to McQuade and Smith. (McQuade Dep. at 109, Def.'s Supp. App. Tab B, ECF No. 43 at 15; Smith Dep. at 26; Wareham Decl. ¶ 21, Pl.'s App. Tab 9, ECF No. 39-10.)

In 2001, Dollar Bank issued lapel pins (" DB lapel pins" ) to corporate banking and private banking as part of an advertising campaign. (Smith Dep. at 24 & 27, Pl.'s App. Tab 4, ECF No. 39-5.) Sometime after that, Wareham came to Smith on several occasions and asked that the DB lapel pins be given to loan center personnel, and Smith complied. (Smith Dep. at 24-25.) On five or six occasions after the DB lapel pins were issued in 2001, Smith noticed that Wareham was wearing a cross lapel pin instead of the DB lapel pin, and asked why he was not wearing the DB lapel pin. (Smith Dep. at 25, 28.) On each occasion, Smith told Wareham that it was inappropriate for him to wear a religious cross lapel pin because when he is working, " he's representing the bank, so [the lapel pin] should be bank presentation, not the presentation of something else." (Smith Dep. at 25.)

The last time Wareham specifically recalls discussing his wearing a cross lapel pin with Smith was on January 15, 2008. (Wareham Dep. at 161.) At that meeting, Wareham contends that Smith told him he did not approve of his wearing a cross lapel pin and asked him not to wear it because it was a divisive symbol that sent the wrong message to Dollar Bank customers and vendors. ( Id. ) Smith claims he never used the word " divisive," but instead referred to Wareham's wearing the cross lapel pin as " inappropriate." [8] (Smith Dep. at 26, Pl.'s App. Tab 4.)

Wareham admits, however, that McQuade, who made the decision to terminate him, never told him not to wear his cross lapel pin. (Wareham Dep. at 174.) Moreover, McQuade did not tell Wareham that wearing the cross lapel pin could be seen as offensive to others who might not share his religious beliefs. (McQuade

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Dep. at 134.) McQuade never talked to Smith about Wareham's wearing of the cross lapel pin, and does not recall Wareham ever telling him that Smith criticized him for wearing the cross lapel pin. (McQuade Dep. at 133.)

On or about November 19, 2009, Anna M. (Mary) Valore, who was employed as a Loan Officer for Dollar Bank at its Murrysville Branch and directly reported to Wareham, informed Wareham that Ron Gavel, her subordinate, had sourced a consumer loan through a broker charging a fee, after having received a phone call from a customer complaining about a $450 fee being charged by the broker. (McQuade Dep. at 149; Valore Dep. at 6, 46 & Ex. 1 thereto, Def.'s App. Tab G, ECF No. 33-7 at 3-4, 14; Pl.'s Dep. at 81; Gavel Dep. at 11, 13, Def.'s App. Tab H, ECF No. 33-8.) Wareham directed Valore to get Gavel on a three-way telephone conference to discuss the matter. (Valore Dep. at 48 & Ex. 1 thereto; Pl.'s Dep. at 90.) During that telephone conference, Wareham, Valore and Gavel discussed the customer's complaint to Valore that a licensed mortgage broker and principal of Pennsylvania Home Equity Mortgage, Lou DeDonne, was asking the customer to pay a $450 fee.[9] (Pl.'s Dep. at 90, 92; Valore Dep. at 48-49; LeDonne Dep. at 7, Def.'s App. Tab L, ECF No. 33-12.) At that time, Wareham told Gavel to tell the broker not to collect a fee from the customer. (Pl.'s Dep. at 90; Gavel Dep. at 27 & 33, Pl.'s App. Tab 7, ECF No. 39-8; Ex. 1 to Valore Dep.) Wareham testified that he then asked Gavel and Valore if there were any other problems with this loan or any other loans, to which Gavel and Valore allegedly responded no. (Pl.'s Dep. at 90, 104.)[10] Based on the responses of Gavel and Valore, Wareham testified that he had no reason to further investigate the matter. (Pl.'s Dep. at 104.)

Wareham admitted that he did not inform McQuade of the issue with the Fabiszewski loan--that Gavel had sourced the loan through a paid broker--nor did Wareham investigate the extent of Gavel's sourcing of loans through paid brokers, because he claims there was no reason to investigate this issue further. (Pl.'s Dep. at 96, 104.) At this time, Wareham was aware that sourcing consumer loans from a mortgage broker charging a fee is against Dollar Bank's policy. (Pl.'s Dep. at 92, 103-04, 165.)

Valore recalled the three-way telephone conference and her conversation with Wareham afterwards somewhat differently. During the three-way conference, Valore observed that Wareham questioned Gavel about the broker fee and Gavel responded that he knew nothing about what Lou DeDonne (the broker) does. (Ex. 1 to Valore Dep., Def.'s App. Tab G.) Valore then asked Gavel about previous closing fees charged by the broker, LeDonne, and Gavel allegedly stated that he did not know what LeDonne does. ( Id. ) Valore then indicated to Wareham that she did not think the problem with the Fabiszewski loan was the only one. (Valore Dep. at 59.)

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After the three-way conference concluded, Valore told Wareham the she did not agree with the follow-up with the broker on the Fabiszewski loan, i.e., Gavel was to call the broker and tell him not to pursue collecting a broker's fee and Gavel would call her to let her know he had talked to the broker. (Valore Dep. at 46.) Valore told Wareham she was not comfortable with, nor did she approve of, simply asking the broker to withdraw this one fee, as it may not resolve a possible ongoing issue of charging for referrals. (Valore Dep. at 46, 59 & Ex. 1 thereto.) Valore suggested that " we might be compelled to investigate [the broker's] role further[,]" to which Wareham allegedly responded that he wanted Gavel to ask the broker to " back off" of the Fabiszewskis and to contact Valore afterwards. (Ex. 1 to Valore Dep.)

On or about November 23, 2009, Valore contacted McQuade with her concerns that Gavel may have sourced other loans to LeDonne who was charging customers a broker's fee. (Valore Dep. at 59-63; McQuade Dep. at 17-19, 149.) McQuade asked Valore to meet with him in branch support and bring with her the names of the customers whose loans she suspected that Gavel sourced with a broker and were charged a broker's fee. (McQuade Dep. at 20; Valore Dep. at 59-63.)

On or about November 27, 2009, Valore met with McQuade in person, she communicated to him what transpired during the three-way conference call with Wareham and Gavel, and her conversation with Wareham afterwards. (Valore Dep. at 62.) At her meeting with McQuade, Valore provided him with the names of eight customers whose loans were processed by Gavel and whom she suspected paid a broker's fee. (Valore Dep. at 63; McQuade Dep. at 21, 149.) At that time, Valore also informed McQuade that Wareham brought Alt to the Murraysville Loan Center and instructed the employees there to send their declined loans to Alt. (Valore Aff. ¶ 5, Def.'s App. Tab I, ECF No. 33-9; McQuade Dep. at 22-23.) Valore testified that there were no discussions with the customers before referring the declined loans to Alt. (Valore Dep. at 40, Def.'s App. of Record Materials in Resp. to Pl.'s Counter-Stmt. of Material Facts in Dispute (" Def.'s Supp. App." ) Tab D, ECF No. 43 at 23.)

Based on his discussion with Valore, McQuade conducted an investigation into these allegations. McQuade requested that John Park, Vice President of Consumer Lending at Dollar Bank, contact the eight customers whom Valore had identified and provided to McQuade earlier. Park determined that that six of eight customer loans handled by Gavel were sourced from a broker (LeDonne) who charged a broker's fee ranging from $500 to $2,800. In addition, McQuade spoke to Diane Bell, a senior loan representative at Dollar Bank's Virginia Manor branch, regarding whether Wareham had told her to refer declined loans to Alt. (Bell Aff. ¶ ¶ 1, 3, 6, 8, Def.'s App. Tab K, ECF No. 33-11; McQuade Dep. at 140-41.) Bell told McQuade that she had been instructed by Wareham to refer declined loans to Alt, and she was not told to do so only if the customer asked. (Bell Aff. ¶ ¶ 3-4.) Bell also told McQuade that Wareham did not provide her with any instructions on how to refer declined loans to Alt, and that Wareham would get upset if he discovered that she failed to refer declined loans to Alt. (Bell Aff. ¶ ¶ 5-6.)

As a result of his investigation, McQuade concluded that Wareham should be terminated and consulted with Patty Smith-Carroll, Division Head of Human Resources at Dollar Bank, to discuss his investigation and decision. (McQuade

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Dep. at 12; Smith-Carroll Dep. at 23-25, Def.'s App. Tab F, ECF No. 33-6.) Smith-Carroll concurred with McQuade's decision to terminate Wareham, but she did not participate in the decision to terminate Wareham. (Smith-Carroll Dep. at 23-25, 32-33; McQuade Dep. at 134.) On December 7, 2009, Wareham was called to a meeting with McQuade and Smith-Carroll, at which time he was asked several questions about the Gavel/broker fee situation, among other things, and McQuade informed him that he found other loans sourced by Gavel where the customers had been charged a broker's fee. (Pl.'s Dep. at 125-26; Smith-Carroll Dep. at 34-36.)[11] McQuade then informed Wareham that he was being terminated. (Pl.'s Dep. at 126; Smith-Carroll Dep. at 34.) Wareham asked for a verbal or written warning so that he could change whatever habits or procedures they thought to be wrong, but was told that his termination was non-negotiable. (Pl.'s Dep. at 126.) Wareham tried to question Smith-Carroll and McQuade for more specifics as to why he was being terminated but was told that the decision had been made and was non-negotiable. ( Id. )

At the time of his termination, Wareham was 49 years old,[12] a Christian, and regularly wore a cross lapel pin to work. (Pl.'s Dep. at 171.) McQuade, was 44 years of age at the time of Wareham's termination[13] and is also a Christian.[14] Dollar Bank also terminated Gavel on December 7, 2009, the same date as Wareham. (McQuade Dep. at 145; Pl.'s Dep. at 81, 165.) Gavel did not regularly wear a cross lapel pin to work. (Valore Aff. ¶ 4, Def.'s App. Tab I, ECF No. 33-9.)

Thereafter, Wareham filed a timely Charge of Discrimination with the EEOC dated June 28, 2010. (Ex. 37 to Pl.'s Dep., Tab C, ECF No. 33-3 at 60-61.) The EEOC issued a Dismissal and Notice of Rights to Sue letter on December 15, 2010 (Compl. ¶ 8), and Wareham filed this timely civil action on March 4, 2011. Discovery has been completed and Dollar Bank has now moved for summary judgment. The motion has been fully briefed and responded to, and thus, is ripe for disposition.

II. LEGAL STANDARD - SUMMARY JUDGMENT

Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will

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bear the burden of proof at trial. Celotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence, or the lack thereof, which demonstrates the absence of a genuine issue of material fact. Nat'l State Bank v. Fed'l Reserve Bank of New York, 979 F.2d 1579, 1581-82 (3d Cir. 1992) (citing Celotex, 477 U.S. at 323-25). Once that burden has been met, the nonmoving party may not rest on the allegations in the complaint, but must " go beyond the pleadings and by [his] 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.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e) (1963). See also Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995) (" plaintiff cannot resist a properly supported motion for ...


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