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Eric D. Johnson v. Independence Blue Cross

May 2, 2013


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


This lawsuit arises from the plaintiff's employment with defendant Independence Blue Cross ("IBC"). The plaintiff, Eric Johnson, alleges that his superiors at IBC unlawfully discriminated against him on the basis of race in terms of various project assignments, workplace recognition, and promotion decisions. He also alleges that IBC retaliated against him for complaining of its discriminatory conduct both internally and to governmental authorities. Johnson asserts causes of action under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Pennsylvania Human Relations Act ("PHRA"), and 42 U.S.C. § 1981.

IBC has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. After holding oral argument on December 20, 2012, the Court will now grant IBC's motion.

I. Summary Judgment Record

The facts described herein are undisputed unless otherwise noted. Inferences are drawn in the light most favorable to Johnson, the non-moving party. Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009).

A. Johnson's Initial Employment at IBC Johnson, who is African American, is a graduate of Temple University with a bachelor's degree in actuarial science. Following graduation, Johnson held, among other jobs, actuarial positions at two different companies, General Accident and UnitedHealth Group. Johnson worked as an actuarial analyst at those two companies for approximately a combined seven years. At UnitedHealth Group, Johnson was promoted to be an associate manager, supervising its database programming models. PX A (3/22/11 Johnson Dep.) at 8, 12-15, 17.*fn1

In April 2006, Johnson took a job as a lead actuarial analyst with the defendant, IBC, a position that he still held as of March 22, 2011, when his deposition was taken in connection with this action.*fn2 Johnson was hired by Mark Cary to work in the department that Cary led. Cary and Johnson had previously met when Cary interviewed Johnson and actively recruited him for a job in the data department at Cary's prior employer, Health Partners. Johnson did not take that position. After becoming a lead actuarial analyst at IBC, Johnson reported directly to Cary, who oversaw the department's Medicare Part D projects; however, Johnson worked on a mix of Part D and Medicare Part C assignments, spending about 65% of his time on Part D projects.*fn3

After three or four months, Johnson was reassigned to report to Bill Smith, who managed the department's Part C projects, and who, in turn, reported to Cary. Cary told Johnson that he thought it would be better for him to report to Smith, given that the two had done a lot of work together and because Cary did not have time to spend working with Johnson. Johnson continued working on the same proportion of Part C and Part D projects once he began reporting to Smith. Id. at 24, 26-28, 32-35.

B. IBC Actuarial Development Program IBC offers an Actuarial Development Program, which provides eligible employees with incentives to take professional certification examinations offered by the Society of Actuaries. Participants in the program receive a bonus for passing each examination. IBC also gives participating employees paid time for study while at work and reimburses the cost of exam preparation materials, fees, and expenses associated with taking the tests. DX 1 (3/22/11 Johnson Dep.) at 40, 44-46.

Shortly after starting work at IBC, Johnson learned about the Actuarial Development Program from the program facilitator, Carolyn Young. Young informed Johnson about the financial and other benefits of the program and encouraged him to apply. She told Johnson that there were no penalties for failing an examination or failing out of the program, which occurred after receiving three successive non-passing examination scores. Young said that failing scores would not be reflected on a participant's general employment evaluation. PX A at 40-42. Johnson's supervisors, Smith and Cary, have since confirmed that not participating in the program or performing poorly on the tests was to have no impact on an employee's performance reviews. PX B (4/8/11 Cary Dep.) at 33-34; PX C (2/10/11 Smith Dep.) at 14.

Johnson enrolled in the program in the summer of 2006 and thereafter took two certification exams, one administered in November 2006 and one given in May 2007. The exams were scored on a scale of zero to ten, with a score of six needed to pass. Johnson was provided time out of his workday to study for both tests. He did not pass either exam, receiving a failing grade of one on the November 2006 exam and a score of zero on the May 2007 exam. DX 1 at 40, 47, 49, 51-52.

Johnson reported his exam results to Young and Smith. Id. at 49-50, 65-67. When he relayed his May 2007 exam score to them in a July 23, 2007 e-mail, he also stated that he wanted to withdraw from the program because he did not believe that he could successfully continue in it. Young replied that she was "fine" with Johnson's decision to withdraw but that she wanted to meet with him to discuss his participation in the program. DX 6 (7/23/07-7/24/07 E-mails Between Young & Johnson). At their meeting, Young questioned whether Johnson had studied for the test. Johnson explained that there were other factors that may have contributed to his failing score. Young informed Johnson that she would release him from the program and that he would need to pass an exam on his own to gain re-entry. PX A at 69, 74. For his part, Smith did not have a problem with Johnson's failing scores and decision to end his participation in the program. Neither in any way impacted Johnson's ability to perform the dayto-day functions of his job. PX C at 17, 27.

In September, Cary learned about Johnson's test results on the May 2007 actuarial exam and heard from others at IBC, including Young and Smith, that Johnson said he had not attempted to pass the exam. DX 2 (4/8/11 Cary Dep.) at 35. On September 25, 2007, Cary met with Johnson and Smith to discuss his concerns about Johnson's level of effort in the Actuarial Development Program. At the meeting, Cary stated that he did not think Johnson had tried to pass the May 2007 test, as evidenced by his score of zero. Cary further stated that Johnson's lack of effort in the program demonstrated that Johnson did not care about his job, their department, the company, or the co-workers who had covered for Johnson while he studied for the exam. DX 1 at 79-82. Cary recalls Johnson stating in their meeting that he "did not even attempt to answer any of the questions on the test." DX 2 at 35. Johnson states that, during the meeting, he informed Cary that he had done the best he could on the examination and that he attempted to memorize any questions he did not recognize so that he could study those questions before retaking the test. DX 1 at 82-84.

During their discussion, Cary became visibly angry and "hollered" at Johnson. Id. at 82-83, 85; PX C at 42. Johnson had never heard Cary yell at any other employee. PX A at 85-86. On other occasions, however, Cary had raised his voice at Smith and denigrated Smith's work product in a bullying manner. DX 3 (2/10/11 Smith Dep.) at 43-44; DX 2 at 104. Cary also raised his voice during interactions with another employee, John Forster. DX 2 at 104.

C. Johnson's Initial Complaints

That day, following his meeting with Cary and Smith, Johnson met with Carole Heys, an employee in IBC's human resources department, and complained that Cary had yelled at him about his performance on the credentialing exams. DX 1 at 88-89. Later that afternoon, Johnson sent Heys an e-mail stating that Cary's behavior at the meeting had created a "somewhat volatile" work environment and that he wanted to "seek some type of resolution" to avoid any similar interactions in the future. Neither at the meeting with Heys nor in his subsequent e-mail did Johnson claim that he believed Cary's behavior had been racially motivated. DX 7 (9/25/07 E-mail from Johnson to Heys); DX 1 at 89-90. Heys began an investigation into Johnson's complaint.

PX D (2/11/11 Heys Dep.) at 24.

The next morning, Johnson entered the bathroom and saw Cary at one of the sinks. When Cary said hello, Johnson did not respond and went directly into a stall. Johnson "wanted to avoid him." DX 1 at 91-92. Following their encounter, Cary sent Johnson an e-mail, advising Johnson against ignoring him when he said hello. Cary stated that "[t]his isn't child care, it's a business" and that he expected Johnson "to act accordingly."

DX 8 (9/26/07 E-mail from Cary to Johnson).

On October 3, 2007, Johnson sent Heys a six-page memo complaining about Cary's lack of professionalism and competence and requesting to no longer be under his supervision. The memo detailed the September 25 meeting and surrounding events, and claimed that Cary's behavior during that meeting had created a hostile environment. In his memo, Johnson also stated that he believed Cary had seized on the issue of Johnson's exam performance to vent a more longstanding frustration Cary harbored against him. According to Johnson, Cary had failed to heed Johnson's warning that an outside vendor hired for a previous data modeling project would not be able to complete the task on time and that the department should look for other ways to accomplish the project. Johnson turned out to be correct and Cary eventually engaged a different independent programmer. In Johnson's estimation, Cary's failure to listen to him initially resulted in a waste of department resources. Johnson speculated that he had made Cary "feel inadequate," and Cary resented him for that. Johnson did not suggest that the reprimand he received from Cary was the product of racial discrimination. DX 9 (10/3/07 Mem. from Johnson to Heys).

Two days later, on October 5, Heys convened a meeting with Johnson, Cary, and Smith to discuss Johnson's complaints. At the outset of the discussion, Cary apologized to Johnson for his behavior at the earlier September 25 meeting. Johnson refused to accept the apology because he and Cary had not yet resolved all outstanding issues between them. Since the September 25 incident, Johnson had heard from Heys that Cary claimed to have been frustrated by Johnson's poor performance all year; Johnson denied that his performance had been poor and suggested that this was a "retaliation situation." Johnson also disagreed with Cary's view that he had been evasive in answering questions about his actuarial exam scores during their previous meeting. Cary apologized a second time, and Johnson once again rejected the apology, believing it was insincere. At some point in the discussion, Johnson characterized Cary's actions during the September 25 meeting as "pure evil." Johnson requested that, if Cary had remaining questions about his performance on the actuarial exams, those questions be asked over e-mail. DX 1 at 97-99, 103-04, 106-09, 110; PX A at 100-01. At the end of the meeting, Heys said the matter was closed, which Cary understood to mean that he would not again ask Johnson to explain his exam performance. PX B at 54-55.

Heys thought Cary acted inappropriately by waiting two months from the time Johnson reported his May 2007 exam score to speak to Johnson about his performance in the Actuarial Development Program. She also thought it was improper for Cary to raise his voice when speaking with Johnson. Heys contacted Cary's supervisor, IBC chief actuary Kathy Galarneau, and instructed Galarneau to speak with Cary. Cary was ultimately told that his behavior had been inappropriate. Heys believed Cary's apology was a satisfactory resolution of the issue and that no further disciplinary action was warranted. PX D at 16-17, 23-24, 26, 30.

D. Interim Performance Evaluation

On October 24, 2007, Johnson received an interim performance appraisal prepared by Smith. The interim evaluation listed Johnson's "2007 Accomplishments to Date" and noted Johnson's strengths and growth opportunities. In Johnson's view, the interim evaluation was not fair because it contained "subtle exaggerations" and did not include certain of his accomplishments that had saved IBC millions of dollars. The same day that he received the interim review, Johnson informed Smith that it failed to mention a particular project as an accomplishment. Smith apologized, responding that the omission was an oversight, and immediately revised the evaluation, providing Johnson with a new version also on October 24. DX 12 (10/24/07 2007 Interim Performance Appraisal); DX 1 at 129, 134-36; PX A at 246. The interim appraisal played no role in driving Johnson's eligibility for a salary increase, and Johnson was not demoted in connection with this review. DX 1 at 135.

E. Complaints of Discrimination

The next day, October 25, 2007, Johnson submitted a second memorandum to Heys, as a follow-up to the October 5 meeting. For the first time, Johnson alleged that Cary's actions constituted unlawful harassment, discrimination, and retaliation. DX 11 (10/25/07 Mem. from Johnson to Heys). Johnson had never heard either Cary or Smith make a comment that he considered to be racist. DX 1 at 111. He based his claim of discrimination on the fact that Cary had reprimanded him about his exam scores on September 25 and had shown little respect for Johnson's "talents and contributions" throughout the year, ignoring Johnson's suggestions or failing to seek Johnson's input regarding data modeling projects. His memo stated that, in contrast, Cary circulated an e-mail announcing the promotion of Rita France, a Caucasian employee on a different team in Johnson's department. Johnson was not interested in that particular promotion because it was for a position lower than the one he already held, but he claimed that his contributions to the department were at least as substantial as those made by France and felt that he also deserved recognition. Johnson accused Cary of abusing his authority. DX 11; DX 1 at 119; PX A at 117-18.

One or two days later, Heys called Johnson into her office. She asked Johnson why he had written his memo and if he was trying to get Cary fired. Johnson said that decision was within the human resources department's discretion, but that he would like an investigation into his claims. Heys said that she would not conduct any such investigation. DX 1 at 138-39.

Johnson then escalated the issue to Heys' supervisor, Suzanne Driscoll Beckett, in a memo to Beckett and Cary's superior, Galarneau. Johnson stated that he was not attempting to harass Cary or get him fired and that he simply wanted a fair investigation into his claims. DX 13 (11/8/07 Mem. from Johnson to Beckett & Galarneau). Johnson then met with Beckett. He clarified that he was alleging a claim of racial discrimination against Cary. Beckett twice asked Johnson if he wanted her to investigate the matter, cautioning that, if she found out these charges were based solely on personal animus, Johnson could be subject to discipline. Johnson stated that he wanted Beckett to proceed with an investigation. DX 1 at 144-46.

In mid-January, Beckett met with Johnson, Cary, Smith, and Heys to discuss the results of her investigation into Johnson's claims of harassment, discrimination, and retaliation. She stated that she had found no evidence to support the allegations and then excused Cary and Smith. After they left, Beckett told Johnson that this matter was now over. Johnson stated that he felt the investigation had been incomplete and that they had not discussed his 2007 interim performance appraisal. Beckett responded that she was not going to ...

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