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Mull v. PNC Bank, National Association

United States District Court, W.D. Pennsylvania

March 26, 2014

SHERRY MULL, Plaintiff,



Plaintiff commenced this action seeking redress for allegedly being terminated from employment in violation of the Age Discrimination in Employment Act ("ADEA"). Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, defendant's motion will be granted.

Federal Rule of Civil Procedure 56(c) provides that 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." 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 claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir.1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial, " or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56(a), (e)) (emphasis in Matsushita ). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir.1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n. 12 (3d Cir.1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir.1992), cert. denied, 507 U.S. 912 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).

The record read in the light most favorable to plaintiff establishes the background set forth below. Plaintiff was hired by PNC as a teller in July 1991, at which time she was 38 years of age. She was promoted to teller supervisor in 1997 and assigned to the PNC branch located at the Lebanon Shops in Pittsburgh. Plaintiff's responsibilities as teller supervisor included servicing customers, training tellers, auditing teller cash drawers, ensuring compliance with teller cash-handling protocols and answering employee inquiries.

In October 2008, Thomas Tedrow ("Tedrow") became manager at the Lebanon Shops branch. Tedrow was in his early to mid-thirties. Plaintiff reported to Tedrow until her discharge on September 21, 2010.

Corporate policies were enforced inconsistently throughout plaintiff's tenure at PNC. Before Tedrow's arrival defendant's workplace policies and procedures, necessarily balanced against "real world" job demands and the provision of good customer service, were applied according to the dictates of common sense. For example, despite at times having an out-of-balance teller drawer or not meeting investment referral goals, plaintiff was never disciplined under defendant's corrective action policy until Tedrow became branch manager. All of plaintiff's branch managers prior to Tedrow took the position that if PNC suffered no resulting financial loss teller errors were "not a big deal" and tellers were not subjected to corrective action.

Defendant's formal corrective action policy governs the disciplinary process for all PNC employees who have completed the new-hire probationary period successfully. The corrective action policy is progressive. That is, where an employee's deficient performance does not improve, the corrective action process provides for increasingly intensive action to be taken. Step one is a verbal warning or counseling, during which the employee is made aware of the problematic performance, work habit or work-related behavior. The next step is a written warning. Where the problematic performance, work habit or work-related behavior continues, the areas of concern are discussed with the employee, documented and added to the employee's personnel file. If a written warning does not remedy the performance issue, the employee may be placed on probation for up to 90 days. The stated purpose of probation is to put the employee on notice that failure to correct the performance deficiencies and maintain improvement likely will result in termination. The last step in PNC's corrective action process is a final written warning. For conduct related issues, step three of the corrective action process generally will be a final written warning instead of probation. Depending on the infraction the employee will be advised that if the violation, behavior or conduct occurs again, the employee will be terminated.

Plaintiff received a verbal warning on June 11, 2009 for failing to meet her monthly investment referral quota. PNC requires tellers and teller supervisors to produce a minimum of two qualified investment referrals per month. An investment referral is generated when, in the course of speaking with a customer, the employee determines that the customer has the time, interest and money to speak with a financial advisor regarding investments. Whether or not an investment referral is "qualified, " and therefore counts toward satisfying the employee's investment referral quota, is determined by the branch's investment broker.[1]

Over the course of plaintiff's employment (1) many branches failed to meet their respective investment referral goals, (2) the Lebanon Shops branch managers preceding Tedrow enforced the policy governing investment referral quotas loosely or not at all and (3) plaintiff continued to receive "pretty decent" pay raises despite not meeting her quota. The only Lebanon Shops branch employee who consistently met the investment referral quota was Annette Kregiel ("Kregiel"), but there were times when even she failed to do so. Kregiel testified that the "whole branch was having a hard time making the quotas."

At the close of business each day tellers and teller supervisors are required to perform the function of cash balancing - the process of counting, calculating and settling the day's final cash figure to ensure that the cash in the teller drawer equals the amount calculated by the bank's computer system. A drawer is in balance if the cash taken in and paid out throughout the business day agrees with the end-of-day computer system totals and paper entries. A drawer may become unbalanced, for example, when one teller buys or sells cash to another to meet the needs of their respective cash drawers and fails to record the cash transfer properly. Such transactions are governed by defendant's buying or selling cash policy, which provides that a teller must record buys and sells in excess of $100.00 at the time of the cash exchange. Failure to record the transfer at that time will result in the teller accepting the overage or shortage at the end of the business day. This situation is referred to as a teller difference and subjects the teller to corrective action under defendant's policies and standards for teller differences regardless of whether the money is or is not ultimately recovered.[2] Tellers are prohibited from "force balancing, " the process by which a teller corrects the discrepancy after the fact by suspending his or her balance and processing a new record to bring the drawer into balance.

Similar to the investment referral quota policy, Lebanon Shops branch managers preceding Tedrow enforced the policy governing teller differences loosely or not at all. Plaintiff acknowledged, however, that corrective action may be appropriate under defendant's teller difference policy where there is a significant teller difference even if it does not result in a loss to the bank.

Plaintiff received written warnings concerning a cluster of events which occurred between January 25, 2010 and January 29, 2010. Corrective action records indicate that on January 25, 2010, Tedrow observed plaintiff put away her cash drawer at the end of the business day. He then announced that a surprise cash audit would occur the following business day. Plaintiff indicated that she had not yet balanced her drawer and was showing an out-of-balance of $3, 000.00, which was located within minutes. Although records indicate that plaintiff admitted to not following policy and procedure regarding counting cash in the vault at the time of balancing, plaintiff vehemently denied both violating the policy and admitting to having done so. Plaintiff maintained and continues to contend that the out-of-balance was discovered before she was required to accept the difference under defendant's policy because her cash was not yet "off the floor" and the branch's main vault remained unlocked.

Two days later, the Lebanon Shops branch's ATM was out of balance with an overage of $14, 500.00. The ATM custodian, Kregiel, immediately notified plaintiff of the overage. As the "back up control teller" at the Lebanon Shops branch, Kregiel was second in command to plaintiff. Kregiel generally attended to ATM issues, including balancing the ATM.

The ATM frequently was out-of-balance. It was Kregiel's practice to notify plaintiff immediately of any ATM out-of-balance but it was customary to then allow a day or so for the balance to resolve itself. Kregiel testified that these out-of-balances normally did resolve themselves within a day or so and generally were not reported to Tedrow unless resolution did not occur within that timeframe. On January 27, 2010, plaintiff directed Kregiel to notify Tedrow of the out-of-balance, which Kregiel did not do. Plaintiff did not inform Tedrow of the out-of-balance herself, which apparently was a violation of defendant's policy. Tedrow eventually was informed of the overage by loss prevention on February 1, 2010.

On January 29, 2010, Tedrow sought guidance from PNC's Employment Relations Information Center ("ERIC") regarding plaintiff's alleged failure to meet her investment referral quota. Records indicate that Tedrow discussed referral goals with plaintiff on January 5, 2010, and he provided referral-related coaching to plaintiff on January 8, 2010 and January 22, 2010. Caroline Jones, a senior employee relations consultant, advised Tedrow to remind plaintiff of the recent verbal warning she received and to reissue that warning with a "very specific expectations set." On February 1, 2010, Tedrow issued another verbal warning to plaintiff that if he did not see immediate and sustained improvement then further corrective action could occur up to and including termination.

On February 2, 2010, plaintiff received a final written warning regarding an out-of-balance with a shortage of $10, 000.00 occurring on January 29, 2010. On that date, plaintiff sold $10, 000.00 in 20 dollar bills to Paig Campbell ("Campbell"). During the transaction plaintiff inadvertently gave Campbell an additional $10, 000.00 in cash. By the time plaintiff noticed the error, Campbell had already left the branch and the vault was locked. Plaintiff accepted the out-of-balance and notified loss prevention of the shortage. Suggesting that she engaged in force balancing, Campbell signed off in-balance despite having a $10, 000.00 surplus in her drawer. Tedrow was required to return to the branch that night to perform a full cash audit. Plaintiff was required by policy to inform Tedrow of the shortage on the day of the occurrence but did not do so until the following day. Despite the fact that plaintiff accepted the shortage (as was required by policy) and Campbell force balanced (as was prohibited by policy), plaintiff received the same corrective action as Campbell - a final written warning.

Plaintiff again was subject to PNC's corrective action policy on February 11, 2010. Corrective action records reveal that plaintiff was

"required to show immediate and sustained improvement in all aspects of following PNC and branch policies and procedures. [Plaintiff] is required as the teller supervisor to demonstrate proper cash control, notify the branch manager of any teller differences, and notify the appropriate chain of command of any teller differences on the same day which they occur. As the teller supervisor, [plaintiff] is to set the example in completing these procedures in the proper manner and is to instruct the tellers on the line to adhere to these guidelines. [Plaintiff] is to bring any work issues to her [manager's] attention to review and resolve."

This constituted a final written warning to plaintiff. The warning was to and did remain in plaintiff's employment file for the duration of her employment. The warning advised plaintiff that her failure to show immediate and sustained improvement would result in further corrective action up to and including termination.

On June 30, 2010, Tedrow along with Mary Ann Wallis ("Wallis"), sales and services support manager, delivered another written warning to plaintiff. This warning, which again related to plaintiff's failure to meet her investment referral quota, noted that since plaintiff received a verbal warning in February she had produced only a single investment referral. In sharp contrast, however, plaintiff was issued a certificate of excellence in which she was commended for being "#10 in referral units" for defendant's entire South Region and credited with five referral units in June of 2010. Tedrow initially provided deposition testimony that the referenced referral units did not relate to investment referrals, but conceded that he did not recall ...

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