United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
NORA BARRY FISCHER, District Judge.
This is an employment discrimination case brought by Debra Boyd ("Plaintiff" or "Boyd") against her former employer, Citizens Bank of Pennsylvania, Inc. ("Defendant" or "the Bank"). Plaintiff asserts that Defendant discriminated against her based upon her age and race, and retaliated against her in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 623 et seq. ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) ("Title VII"), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA").
Presently pending before the Court is the Defendant's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 81). Upon consideration of the parties' submissions and for the reasons set forth below, the Defendant's Motion will be granted.
A. Local Rule 56.1 violation
As an initial matter, the Court notes Plaintiff's failure to properly respond to Defendant's Concise Statement of Undisputed Material Facts as required by the Local Rules of the United States District Court for the Western District of Pennsylvania. Local Rule 56.C.1 mandates that a non-moving party's response to a motion for summary judgment must include:
1. A Responsive Concise Statement: A separately filed concise statement, which responds to each numbered paragraph in the moving party's Concise Statement of Material Facts by:
a. admitting or denying whether each fact contained in the moving party's Concise Statement of Material Facts is undisputed and/or material;
b. setting forth the basis for the denial if any fact contained in the moving party's Concise Statement of Material Facts is not admitted in its entirety (as to whether it is undisputed or material), with appropriate reference to the record (See LCvR 56.B.1 for instructions regarding format and annotation); and
c. setting forth in separately numbered paragraphs any other material facts that are allegedly at issue, and/or that the opposing party asserts are necessary for the court to determine the motion for summary judgment.
LCvR 56.C.1. Furthermore, Local Rule 56.E provides as follows:
E. Admission of Material Facts. Alleged material facts set forth in the moving party's Concise Statement of Material Facts or in the opposing party's Responsive Concise Statement, which are claimed to be undisputed, will for the purposes of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.
The Court's Order dated November 4, 2013 explicitly directed the parties to adhere to Local Rule 56.C, and in light of the Plaintiff's pro se status, the Court set out the requirements of Local Rule 56.C in its Order. (ECF No. 72). In addition, the Court's Order instructed the Plaintiff that her Response "shall contain a separately filed Concise Statement of Facts that admits or denies each fact contained in Defendant's Motion for Summary Judgment with appropriate citations to the record, ... and an Appendix containing any documents that Plaintiff references in her Concise Statement of Facts." (ECF No. 72 at p. 2).
Defendant filed a Concise Statement of Material Facts, containing paragraphs numbered 1 through 263, in support of its Motion for Summary Judgment on December 16, 2013, see (ECF No. 85), and filed unredacted portions (paragraphs numbered 162 through 248) under seal on December 18, 2013. (ECF No. 87). Defendant additionally filed an Appendix of Exhibits in Support of its Motion for Summary Judgment. (ECF No. 86). In response, Plaintiff filed a Response to Defendant's Concise Statement of Undisputed Material Facts, but only specifically addressed paragraphs numbered 1 through 61. (ECF No. 92). Despite this Court's Order, many of the Plaintiff's responses simply set forth her view of the "facts" with no supporting citations to the record. (ECF No. 92). Moreover, Plaintiff refused to separately respond, as ordered by the Court, to paragraphs numbered 62 through 263, stating:
62-end of Concise statement is disagreed, disagreed in parts and/ or is NA. I feel it is not necessary to waste time responding to each statement individually when my position is ( sic ) already been argued.
(ECF No. 92 at pp. 12-13) (emphasis in original).
This Court "requires strict compliance with the provisions of [Local Rule 56]." E.E.O.C. v. U.S. Steel Corp., 2013 WL 625315 n.1 (W.D.Pa. 2013) (quoting Practices and Procedures of Judge Nora Barry Fischer § II.E. (i), Effective March 23, 2010, available at http://www.pawd.uscourts.gov/Documents/Judge/fischer_pp.pdf.). We recognize that courts accord pro se litigants a certain degree of leniency, particularly with respect to procedural rules. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). However, as we recently explained:
[T]he Court may not be co-opted by a pro se litigant to perform tasks normally carried out by hired counsel. Mala, 704 F.3d at 244 (citing Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004)); Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). Providing assistance or "[e]xtending too much procedural leniency to a pro se litigant risks undermining the impartial role of the judge in the adversary system." Id. (quoting Procedural Due Process Rights of Pro Se Civil Litigants, 55 U. CHI. L. REV. 659, 671 (1988)). Moreover, it has never been suggested that "procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel." Id. at 245 (quoting McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993)). Pro se litigants must adhere to procedural rules as would parties assisted by counsel. Id. This includes procedural requirements regarding the provision of adequate factual averments to sustain legal claims. Id. (citing Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996)).
U.S. v. Gregg, 2013 WL 6498249 at *4 (W.D.Pa. 2013).
Accordingly, to the extent Plaintiff's recitation of the facts do not specifically address Defendant's statement of facts, Defendant's statement will be deemed admitted. LCvR 56.E; Gupta v. Sears, Roebuck and Co., 2009 WL 890585 at *3 (W.D.Pa. 2009); Aubrey v. Sanders, 2008 WL 4443826 at *1 (W.D.Pa. 2008), aff'd, 346 F.Appx. 847 (3d Cir. 2009); Janokowski v. Demand, 2008 WL 1901347 at *1 (W.D.Pa. 2008). To the extent Plaintiff's statement of "fact" specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted.
1. Plaintiff's general employment history with Defendant
Plaintiff was hired by Mellon Bank on June 27, 1983. (ECF No. 85 at ¶ 2, ECF No. 23 at ¶ 10). As a result of a merger, she became an employee of Defendant in the Operations Services department in 2001. (ECF No. 85 at ¶ 3, ECF No. 86-1 at ¶ 4). Although Plaintiff reported to different managers since 2001, her ultimate supervisor, at all relevant times, was Barbara J. Black ("Black"), the Vice President and Operations Services Manager for Consumer Operations for the Bank. (ECF No. 85 at ¶ 5, ECF No. 86-1 at ¶ 5). Shortly after the merger, Plaintiff became responsible for reconciling payments related to American Express travelers' checks issued by the Bank's branch locations, and she reported directly to Maureen Norman ("Norman"), who, in turn, reported to Black. (ECF No. 85 at ¶¶ 6-7, ECF No. 86-1 at ¶¶ 6-7).
In July 2002, a performance appraisal was conducted by Norman, and Plaintiff received an overall performance rating of 2, which was defined as "Exceeds Most Expectations." (ECF No. 85 at ¶ 156(a), ECF No. 86-9 at pp. 9-10). In August 2003, Norman assigned Plaintiff an overall performance rating of 3, which was defined as "Meets Expectations." (ECF No. 85 at ¶ 156(b), ECF No. 86-9 at pp. 11-15). Plaintiff disagreed with this rating, commenting that she felt like she did "more than what [was] expected of me with my job." (ECF No. 85 at ¶ 156(c), ECF No. 86-9 at p. 15).
In August 2004, Plaintiff received an overall rating of 3 (meets expectations). (ECF No. 85 at ¶ 156(c), ECF No. 86-9 at pp. 17-28). Plaintiff was of the view that she should have been rated higher, stating in the "Employee's Comments" section, "I agree with review, but I feel as though I did exceeding with my work." (ECF No. 85 at ¶ 156(c), ECF No. 86-9 at p. 21). Dissatisfied with her rating, Plaintiff submitted a letter to the Human Resources department stating, inter alia :
I agree with getting a review, but there are important things that should be on my review, and they are not. One of which is I created a screen called IPAX & its purpose is to make corrections that proof & branches have made, when balancing American Express. Also, I confiscated almost $80, 000.00 back to the bank. When I wrote on my review (I did exceeding), I would like it to be shown in my records that I exceeded most of my expectations for American Express.
(ECF No. 86-9 at p. 24). Plaintiff subsequently had several meetings with Norman, Black and Debra Kerchner from Human Resources regarding her appraisal rating. (ECF No. 86-8 at p. 15). Plaintiff also contacted and met with Vice President Paul McKinnon. Id. Plaintiff reiterated her view that her involvement in creating the IPAX screen and the recovery of $80, 000.00 of paid, and not issued American Express items, warranted a rating of 2, "Exceeds Most Expectations." (ECF No. 86-1 at ¶ 54, ECF No. 86-8 at p. 15).
According to Defendant, Plaintiff's characterization of her "creation" of the IPAX screen was inaccurate. Rather, the Bank's IT personnel were in the process of correcting a significant application deficiency in the program, and as part of that effort, IT consulted with several employees in the Operations department, including the Plaintiff, for comments or recommendations for improving the system to meet the department's needs. (ECF No. 85 at ¶ 116, ECF No. 86-1 at ¶ 54, ECF No. 86-8 at pp 15, 18). Defendant informed Plaintiff that her contributions were part of a team effort and included in her job responsibilities. (ECF No. 85 at ¶ 115, ECF No. 86-8 at p. 15). Revisions were made to Plaintiff's performance appraisal as a result of the meeting, but her overall rating remained unchanged and she refused to sign the revised appraisal form. (ECF No. 85 at ¶ 121, ECF No. 86-1 at ¶¶ 55-57, ECF No. 86-8 at pp. 15-17).
In March 2005, Plaintiff was transferred within the Operations Services department to the Pre-Legal unit, and reported to Linda Williams ("Williams"), who reported to Black. (ECF No. 85 at ¶¶ 8, 10, ECF No. 86-1 at ¶ 7, ECF No. 86-8 at p. 1). Plaintiff was responsible for fielding calls from customers, attorneys, the IRS, and others, related to holds, levies, and other legal directives to the Bank. (ECF No. 85 at ¶ 9, ECF No 86-1 at ¶ 7). Plaintiff described this position as being a "phone clerk, " wherein she was tasked with gathering information from callers and relaying the information to the Legal unit responsible for the requested action. (ECF No. 85 at ¶ 9, ECF No. 86-13 at p. 5 (Dep. pp. 26-27)). According to Defendant, Plaintiff requested this transfer in order to be eligible to receive incentive awards under the Bank's C-TOPs program, which was an initiative intended to reward employees with nominal sums, rarely in excess of $100.00, based upon the quantity of work performed. (ECF No. 85 at ¶ 8, ECF No. 86-1 at ¶ 7).
On April 10, 2006, Plaintiff was laterally transferred to another position in the Legal unit, wherein her job duties included sorting mail in the morning and processing answers in the afternoon. (ECF No. 85 at ¶ 11, ECF No. 86-1 at ¶ 8). Plaintiff did not, however, care for this job, and was transferred back to her former position in the Pre-Legal unit on June 10, 2006 pursuant to her request. (ECF No. 85 at ¶ 11, ECF No. 86-1 at ¶ 8, ECF No. 86-9 at p. 7).
In August 2006, Katie Mattern, an Operations Clerk VII, resigned from her position with the Bank. (ECF No. 85 at ¶ 135, ECF No. 86-9 at p. 7). According to Defendant, Plaintiff approached Black and informed her that she was unaware of the opening, and that it was management's responsibility to advise staff of open positions. (ECF No. 85 at ¶ 136, ECF No. 86-9 at p. 7). Black informed Plaintiff that it was the employees' responsibility to review the online postings of available positions. (ECF No. 85 at ¶ 137, ECF No. 86-9 at p. 7). Plaintiff continued to express interest in the position believing it would involve moving from a grade 5 to a grade 7. (ECF No. 85 at ¶ 138, ECF No. 86-9 at pp. 7-8). Black explained to Plaintiff, however, that the job was posted at a grade 5 level, and would be a lateral move for Plaintiff with no increase in pay. (ECF No. 85 at ¶ 139, ECF No. 86-9 at p. 8). According to Black, Plaintiff informed her she was not interested in the position since it was a lateral move. (ECF No. 85 at ¶ 139, ECF No. 86-9 at p. 8). Joshua Wynkoop, who had applied for the position through the Bank's online application system, was hired to replace Ms. Mattern on August 28, 2006. (ECF No. 85 at ¶ 140, ECF No. 86-8 at p. 5).
During this same time frame, several other Operations Clerk V positions opened up in the Legal unit, each of which were available for application through the Bank's online application system. (ECF No. 85 at ¶ 142, ECF No. 86-7 at p. 23). The Bank hired Taneshia Pickett, Gene Trunzo, and Rhonda Moorer to fill these vacancies, and all had applied for the positions using the online application system. (ECF No. 85 at ¶ 143-144, ECF No. 86-7 at p. 23).
On September 26, 2006, Plaintiff contacted Kerchner and stated that there had been two open positions in her department for which she had expressed an interest to her manager, Maggie Thomas. (ECF No. 85 at ¶ 145, ECF No. 86-4 at p. 20). Plaintiff indicated that Ms. Thomas had instructed her to apply online, but she had been unable to access the system. (ECF No. 86-4 at p. 20). Plaintiff stated that it was not her fault that she could not access the system, and was of the view that after 23 years of service she should have been placed in one of the positions. Id. Kerchner directed Plaintiff to access the training modules for instructions on how to apply online. (ECF No. 86-4 at p. 21). Kerchner further informed Plaintiff that service at the Bank did not "entitle" anyone to a particular position "just because they've expressed an interest in it." Id.
Plaintiff also conveyed her dissatisfaction with not being selected for a position to Black and Ralph Papa, the Chairman of the Bank at that time. (ECF No. 85 at ¶ 145, ECF No. 86-2 at p. 7). Plaintiff was informed during a meeting on October 27, 2006 that it was her responsibility to apply for the jobs she was interested in online. (ECF No. 86-2 at p. 7). It is undisputed that Plaintiff never submitted an application for either position, but she nonetheless claimed her failure to do so was not her fault. (ECF No. 85 at ¶ 141, ECF No. 86-1 at ¶ 72, ECF No. 86-2 at p. 7, ECF No. 86-7 at p. 23). Plaintiff conceded however, that she did not contact Kerchner for assistance when she encountered difficulty accessing the online system. (ECF No. 86-2 at p. 7).
Plaintiff received an overall performance rating of 3, "Meets Expectations" at her performance evaluation in September 2006. (ECF No. 85 at ¶ 156(d), ECF No. 86-8 at pp. 19-22). In June 2007, she received an overall rating of 2, "Exceeds Expectations." (ECF No. 85 at ¶ 1569(e), ECF No. 86-8 at p. 23). Pleased with this rating, Plaintiff commented "I love this appraisal & I thank you." Id.
In January 2008, Plaintiff received an overall performance rating of 3 (meets expectations). (ECF No. 85 at ¶ 156(f)). In January 2009, she received an overall rating of 3 (fully achieved objectives). (ECF No. 85 at ¶ 156(g)). In January 2010, Plaintiff received an overall rating of 3 (fully achieved objectives). (ECF No. 85 at ¶ 156(h), ECF No. 86-9 at p. 5).
On February 5, 2010, Plaintiff contacted the Employee Relations Service Center ("ERSC"), and stated that she strongly disagreed with her overall performance rating of 3 for the 2009 review period. (ECF No. 85 at ¶ 249, ECF No. 86-5 at pp. 11-12). Plaintiff informed Stephanie Arpin ("Arpin"), that she objected to her evaluations in the areas of Quantity (3), Quality (2), and Dependability (2), and was of the opinion that she should have been rated higher in these areas. (ECF No. 85 at ¶ 249, ECF No. 86-5 at p. 11). Arpin investigated Plaintiff's complaints, speaking with Plaintiff's manager, Lisa Hauck ("Hauck"), and ultimately concluded that Plaintiff's performance rating would stand. (ECF No. 85 at ¶¶ 250-251, ECF No. 86-5 at p. 10).
On July 16, 2010, Plaintiff contacted the ERSC and complained regarding the manner in which the Bank's bereavement policy was applied to her when her granddaughter died. (ECF No. 85 at ¶ 254, ECF No. 86-5 at p. 143). Plaintiff was upset that she only received three days leave while Jamie Wagner ("Wagner"), her manager, had received five days leave upon the death of her mother. (ECF No. 86-5 at pp. 138-139). Arpin discussed the Bank's policy with the Plaintiff, noting that five days of leave were allowed for the death of an immediate family member, which included a spouse or domestic partner, parent, child, sibling or relative living in the same household, and that three bereavement days were allowed for non-immediate family members. (ECF No. 85 at ¶ 257, ECF No. 86-5 at p. 4). Arpin noted that Plaintiff did not agree with the policy but understood it, and Arpin considered Plaintiff's concerns to have been addressed. Id.
On November 22, 2010, Plaintiff again contacted the ERSC and spoke with Genny Heffernan ("Heffernan"). (ECF No. 28-5 at p. 3). Plaintiff complained that Black was not assigning her other duties within the department as she requested. Id. Plaintiff was informed that management had discretion regarding assignments, but Plaintiff was of the opinion that Black was discriminating against her since she had previously filed an EEOC complaint. Id. Heffernan requested that Plaintiff document her concerns in writing, and the ERSC would await her statement before determining the next steps. Id. Plaintiff forwarded documents to Heffernan, who in turn referred Plaintiff's complaints to a Tier III specialist,  Kristianne Widman-Johnson ("Widman-Johnson") for handling. Id. Thereafter, Widman-Johnson advised Plaintiff that her complaints related to her EEOC charge would be handled through the EEOC process, and Plaintiff's complaints would be limited to her dissatisfaction with respect to her 2010 performance evaluation. (ECF No. 28-5 at p. 3).
After meeting with Plaintiff and Wagner, Widman-Johnson concluded on February 10, 2011 that Plaintiff's 2010 performance review was appropriate and that Plaintiff had been treated consistently within the department. (ECF No. 28-5 at p. 1). Plaintiff was informed of this decision on February 17, 2011, but continued to maintain that she was not being evaluated fairly. Id.
Less than one week later, Plaintiff again contacted the ERSC on February 23, 2011 and reported that she was being "retaliated against by management through her 2010 review." (ECF No. 28-5 at p. 1). Widman-Johnson noted that Plaintiff had received an overall rating of "successful" on her 2010 review. Id. She further noted that Plaintiff had been treated consistently with the department's approach with respect to attendance, and that no ...