WAYNE A. ELY, ESQUIRE On behalf of plaintiff.
GARY J. LIEBERMAN MAUREEN P. FITZGERALD On behalf of defendant.
JAMES KNOLL GARDNER, United States District Judge
This matter is before the court on Defendant’s Motion for Summary Judgment filed January 23, 2013, seeking summary judgment with respect to plaintiff’s Civil Action Complaint filed January 4, 2012.
SUMMARY OF DECISION
For the following reasons defendant’s motion is granted in part and denied in part. Defendant’s motion is granted to the extent it seeks summary judgment regarding plaintiff’s claims in Count I for age discrimination in violation of the Age Discrimination in Employment Act and in Count IV for gender discrimination in violation of Title VII of the Civil Rights Act of 1964.
Specifically, I conclude that plaintiff has failed to establish a prima facie case to support her claim for age discrimination. Moreover, plaintiff has failed to establish that defendant’s legitimate, non-discriminatory explanation for the adverse actions taken against plaintiff was pretext for gender discrimination.
However, plaintiff has produced sufficient evidence that defendant failed to make reasonable accommodations for plaintiff in violation of the Americans with Disability Act. Moreover, plaintiff has produced sufficient evidence that defendant retaliated against plaintiff for engaging in protected activity under the Americans with Disability Act. Accordingly, defendant’s motion for summary judgment is denied with respect to Counts II and III.
Because plaintiff’s claim under the Pennsylvania Human Relations Act (“PHRA”) is analyzed in the same manner as plaintiff’s federal claims, defendant’s motion for summary judgment concerning count V is granted to the extent it seeks summary judgment on plaintiff’s PHRA claim for age and gender discrimination, but denied to the extent it seeks summary judgment on plaintiff’s PHRA claim for disability discrimination and retaliation.
Jurisdiction in this case is based on federal question jurisdiction pursuant to 28 U.S.C. § 1331.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff’s claims allegedly occurred within this judicial district.
On January 4, 2012 plaintiff Shirley Kosakoski initiated this action by filing the within five-count Civil Action Complaint against defendant The PNC Financial Services Group, Inc.
Plaintiff’s complaint asserts a claim for violations of the Age Discrimination in Employment Act (“ADEA”)(Count I); a claim for discrimination and retaliation under the Americans with Disabilities Act (“ADA”) (Counts II and III); a claim for gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (Count IV); and a claim for violations of the Pennsylvania Human Relations Act (“PHRA”) (Count V).
On March 6, 2012 Defendant’s Answer to Plaintiff’s Complaint was filed.
On January 23, 2013 defendant filed the within motion for summary judgment. On February 18, 2013 plaintiff filed a response in opposition. On March 1, 2013 defendant filed a reply brief in support of its motion for summary judgment.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure permits a party to seek summary judgment with respect to a claim or defense, or part of a claim or defense. Rule 56(a) provides, in pertinent part, that “[t]he court shall grant summary judgment if 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); National Association for the Advancement of Colored People "NAACP" v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2012).
For a fact to be considered material, it “must have the potential to alter the outcome of the case.” Id. (citing Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)). Disputes concerning facts which are irrelevant or unnecessary do not preclude the district court from granting summary judgment. Id.
Where a party asserts that a particular fact is, or cannot be, genuinely disputed, the party must provide support for its assertion. Fed.R.Civ.P. 56(c)(1). Rule 56(c)(1) provides that party may support its factual assertions by
(A) citing particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
When considering a motion for summary judgment, the district court must view the facts and record evidence presented “in the light most favorable to the non[-]moving party.” North Hudson, 665 F.3d at 475 (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).
If the moving party shows that there is no genuine issue of fact for trial, “the non-moving party then bears the burden of identifying evidence that creates a genuine dispute regarding material facts.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Where a defendant seeks summary judgment, the plaintiff cannot avert summary judgment with speculation, or by resting on the allegations in her pleadings, but rather she must present competent evidence from which a jury could reasonably find in her favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995)(Reed, J.).
“Ultimately, [w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Id. (quoting Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (internal quotations omitted and alteration in original).
Based upon Defendant’s statement of facts, Plaintiff’s response to defendant’s statement of facts, Oral Depositions of plaintiff and witnesses, Exhibits to depositions, and Declarations of witnesses, the pertinent facts are as follows.
Plaintiff Shirley Kosakoski was born in April 1961. In 1995 she was diagnosed with clinical depression, and in 2004 she was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). Since childhood plaintiff has experienced migraine headaches several times a month and in the mid-1990s plaintiff was diagnosed with hyperthyroidism.
On May 7, 2007, when plaintiff was 46 years old, the Bank of Lancaster County hired plaintiff as a Relationship Manager. Robert Shoemaker, who worked for the Bank of Lancaster as a Business Services Leader interviewed and hired plaintiff.
As a Relationship Manager plaintiff was responsible for the sales and relationship management for 15 to 30 large companies with annual sales ranging between five million dollars and fifty million dollars.
On April 4, 2008 defendant The PNC Financial Services Group, Inc. (“PNC”) acquired the Sterling Financial Corporation, including its subsidiary, the Bank of Lancaster. PNC retained some of the employees at the Bank of Lancaster, who were reassigned to various positions at PNC.
Plaintiff was reassigned to the position of Business Banker III. Her duties as a Business Banker included supporting retail branch offices, meeting with small businesses (with revenues between one million dollars and ten million dollars), driving the sale of PNC products, and growing her own stock of business.
Plaintiff told Mr. Shoemaker, who was also retained by PNC, that, based on her prior experience as a business banker at another bank, the Business Banker position would not fit her skills. Plaintiff further indicated that the Business Banker position would be a struggle for her and requested that she not be assigned to the position. However, at this point plaintiff did not reveal that she had any medical issues.
Thomas Sposito, who was a Market Manager at PNC, and supervised Mr. Shoemaker, encouraged plaintiff to accept the Business Banker position and told her that within six months to a year of working as a business banker she could transfer to another position at PNC.
Plaintiff accepted the Business Banker III position at PNC and retained her salary. Plaintiff began working for PNC on August 8, 2008. Mr. Shoemaker, who became a Business Banking Manager with PNC, supervised plaintiff, along with a team of ten other Business Bankers.
In her new role as a Business Banker, plaintiff supported three PNC branch offices within a sixteen-mile radius: the Manheim, Litiz and North Pointe branches. The North Pointe branch was located on the first floor, where plaintiff kept the same third-floor office she had used when working for the Bank of Lancaster.
PNC set sales goals for Business Bankers depending on their level of experience. Plaintiff received a positive performance evaluation for her work from the period of May 2008 through May 2009, which included some of her time at the Bank of Lancaster. However, plaintiff was not meeting certain sales goals.
On September 10, 2009 plaintiff met with Mr. Shoemaker to discuss how she could meet her sales goals in the future. At some point in late 2009 Mr. Shoemaker informed plaintiff that he could not do her job at her age.
Prior to her discussion with Mr. Shoemaker, in August 2009 and again in September 2009, plaintiff called PNC’s Employee Relations Information Center (“ERIC”) and explained that because of existing medical conditions she felt stress, anxiety and was overwhelmed in her job. Plaintiff also asked about possible job accommodations.
PNC recommended that plaintiff take time off pursuant to the Family and Medical Leave Act (“FMLA”). Accordingly, plaintiff requested FMLA leave, which PNC granted from October 16, 2009 to November 15, 2009.
Upon her return from FMLA leave, plaintiff called PNC’s Human Resources Department and again requested job accommodations for her medical conditions. Specifically, plaintiff requested that she be permitted to work a flexible work schedule and be provided remote computer access to allow her to work from home. Further plaintiff requested that she be granted intermittent FMLA leave.
After meeting with representatives of PNC’s Employee Relations Department, PNC granted plaintiff’s request to be permitted to take intermittent FMLA leave. PNC also permitted to work from home unless certain meetings were scheduled.
Although plaintiff was permitted to work from home, plaintiff had difficulty accessing PNC’s network remotely from her company laptop computer. When plaintiff told PNC about the difficulties she was having using her laptop from home, PNC instructed her to talk to the Information Technology Department. However, despite numerous inquiries with the IT Department, plaintiff was unable to obtain remote access effectively.
Although plaintiff met all of her sales goals in 2009, in 2010 plaintiff was “floundering” in her job and did not achieve her sales goals. On February 1, 2010 Mr. Shoemaker provided plaintiff with a written performance warning for failing to meet her sales goals and for her failure to attend a January 13, 2010 meeting.
Plaintiff disagreed with Mr. Shoemaker’s assessment and called PNC’s ERIC hotline about the written evaluation. Plaintiff asserted that Mr. Shoemaker had altered her sales numbers and did not account for the time she was on FMLA leave. Moreover, plaintiff asserted that she missed the January 13, 2010 meeting because she had a doctor’s appointment, which she had previously scheduled, and received permission to attend.
Plaintiff suggested to the ERIC hotline that the written warning was discriminatory and that Mr. Shoemaker favored younger, male workers over older, female employees. As an example, plaintiff alleged that in 2008 Mr. Shoemaker selected Adam Althouse, a 26-year-old male, for a Treasury Management position which plaintiff had also applied for, even though plaintiff was more qualified for the position.
After plaintiff’s issued her complaints, PNC assigned an Employee Relations Investigator, Karen Barber,  to investigate plaintiff’s complaints of discrimination and retaliation. As part of the investigation, Ms. Barber interviewed Mr. Shoemaker and Mr. Shoemaker’s direct supervisor, Dennis Ginder.
At the conclusion of her investigation, Ms. Barber concluded that Mr. Shoemaker’s written evaluation of plaintiff required corrections. Specifically, Mr. Shoemaker had erroneously calculated plaintiff’s sales numbers because he did not account for her time away on FMLA leave.
However, Mr. Shoemaker resigned shortly after Ms. Barber’s investigation was complete. Accordingly, Ms. Barber advised plaintiff that Mr. Ginder would correct Mr. Shoemaker’s written evaluation of plaintiff. However, PNC never told plaintiff whether the corrections were actually made and her evaluation revised.
Beginning in February 2010 plaintiff requested additional accommodations for her job. Plaintiff’s customer base had grown from 30 to 800 and plaintiff requested that PNC provide her with an administrative assistant. Additionally, plaintiff requested that the number of branches that she covered be reduced from three to one and that her office be moved from the third floor to the first floor. Plaintiff also requested to be reassigned to another position.
Plaintiff spoke with PNC’s Senior Employee Relations Specialist, Lori Lockard each month. Ms. Lockard requested that plaintiff provide her with documentation to support plaintiff’s requests for accommodations. Accordingly, plaintiff submitted to Ms. Lockard a medical questionnaire, which was completed by a physician. The medical questionnaire indicated that plaintiff suffered from certain limitations because of ADHD. However, the questionnaire did not recommend specific accommodations, but rather indicated that such recommendations were forthcoming.
In March 2010 plaintiff provided Ms. Lockard with a Neuropsychological Evaluation Report completed by Dr. Cynthia Socha-Gelgot. The evaluation report recommended that (1) plaintiff be permitted to work in only one branch rather than three; (2) plaintiff be permitted to utilize a flexible schedule and access PNC’s network from home; and (3) plaintiff be provided with at least a part-time administrative assistant.
Further the evaluation report recommended that “if her employer is not able to accommodate her disability, then she should consider asking her employer to place her in a job role that she is able to perform.”
In March 2010 PNC reduced the number of branches that plaintiff managed from three to two. In December 2010 PNC reduced the number of branches plaintiff managed to one, the North Pointe Branch.
However, plaintiff’s office was not in the branch itself. Instead, plaintiff’s office was located on the third floor of the North Pointe Branch location. Moreover, plaintiff’s third floor office did not have a printer.
Plaintiff requested that she be provided an office in a first floor conference room of the North Pointe branch. However, that office was utilized approximately once a week by an employee of PNC Investments, and PNC rejected plaintiff’s request to provide a first floor office.
Plaintiff also requested that PNC provide her with an administrative assistant to assist her with her duties as a Business Banker. Ms. Lockard requested plaintiff submit further documentation to support her request for an administrative assistant, which plaintiff did not do. Ultimately, PNC denied plaintiff’s request for an administrative assistant.
Plaintiff also requested to be transferred, or laterally reassigned, from her position as Business Banker to another role within PNC. However, PNC typically hires the most qualified applicants for any vacancy, rather than automatically transfer current employees to vacant positions. Accordingly, PNC told plaintiff that she would not be reassigned, but that plaintiff could apply for any open positions posted by PNC.
Plaintiff worked with recruiters at PNC and applied for a number of vacant positions at PNC. Specifically, plaintiff applied for an Equipment Finance position and a position as a Credit Review Officer. However, defendant did not fill either of the positions.
Additionally, plaintiff applied for a Relationship Manager II position. However, after plaintiff applied for the position, PNC changed the position into a Relationship Manager III position. PNC interviewed plaintiff for the position, but told her they wanted someone with more experience. However, PNC ultimately hired Christopher White who was approximately 29 years old and had fewer qualifications than plaintiff.
In addition to the positions plaintiff applied for, a vacancy opened for a Business Advisor position and a position as a Banking Sales Manager, each of which plaintiff was qualified for.
However, plaintiff was not informed that the positions were vacant until after they were filled. Additionally plaintiff thought that, because she had requested a transfer based on her disability, she did not have to formally apply for the positions. Accordingly plaintiff did not apply for either the Banking Sales Manager or Business Banker position.
Accordingly, PNC promoted Don Switzler as the Business Advisor and Terry Bender as the Banking Sales Manager. Plaintiff was slightly more qualified than Mr. Switzler but significantly more qualified that Mr. Bender. In fact, Mr. Bender did not have any management experience and had only worked with PNC for six months.
In April 2010 plaintiff applied for the position of Wealth Management Advisor at PNC. Plaintiff was interviewed by Caron Yon and Shane Zimmerman, neither of whom were aware of plaintiff’s medical issues. PNC hired Robert Walter, who was 56 years old at the time, for the position. Unlike plaintiff, Mr. Walter had private banking experience and extensive wealth management experience. However, subsequent to the hiring decision, Ms. Yon told plaintiff that she was an equally qualified as Mr. Walter.
On June 10, 2010 plaintiff filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging age, sex and disability discrimination. Plaintiff alleged that PNC’s hiring of Mr. Althouse and Mr. Walter was ...