United States District Court, Western District of Pennsylvania
LINDA K. BUTIA, Plaintiff,
THE BANK OF NEW YORK MELLON, Defendant. Re: ECF, 26
OPINION AND ORDER
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
Pending before the court is a Motion for Summary Judgment (ECF No. 26) filed by Defendant The Bank of New York Mellon (“Defendant” or “BNY Mellon”). Plaintiff Linda K. Butia (“Plaintiff” or “Butia”) initiated this action on August 29, 2012, by filing a three-count “Complaint in Civil Action” (ECF No. 1) alleging: (i) sex discrimination under Title VII of the Civil Rights Act of 1963, 42 U.S.C. § 2000e et seq (“Title VII”); (ii) age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”); and (iii) age and gender discrimination under the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951 et seq. (“PHRA”). On November 2, 2012, BNY Mellon filed an Answer to the Complaint. (ECF No. 3).
Following discovery by both parties, BNY Mellon filed a motion for summary judgment and a brief in support. (ECF Nos. 26 and 27). The parties filed a joint statement of undisputed facts (ECF No. 26-1 and refiled at ECF No. 30), as well as separate supplemental statements of facts (ECF Nos. 26-2, 31 and 33). Plaintiff filed her response in opposition to the motion for summary judgment (ECF No. 28), and BNY Mellon filed a reply to Plaintiff’s response (ECF No. 34). In addition, both parties filed supplemental briefs addressing the timeliness of Butia’s PHRA claim (ECF Nos. 39 and 40). The parties have filed extensive exhibits in support of and in opposition to the motion for summary judgment, which have been reviewed in detail by the Court. (ECF Nos. 26-1 through 26-9 and 28-1 through 28-11).
After consideration of the parties’ submissions and the applicable legal principles, the Court concludes that in light of the summary judgment standard of review and based upon the evidence of record, Plaintiff cannot prove that a similarly situated employee received more favorable treatment with respect to the elimination of her position in BNY Mellon’s merged reconciliation and reporting department or that BNY Mellon’s reason for her termination was pretext for discrimination under state or federal law. Accordingly, for the following reasons, the motion for summary judgment filed by BNY Mellon will be GRANTED.
I.FACTUAL AND PROCEDURAL BACKGROUND
The factual background is derived from the undisputed evidence of record and the disputed evidence, viewed in the light most favorable to the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”).
Butia, who was born on July 8, 1953, graduated from Westminster College in 1975, with a Bachelor of Arts degree in Business Administration. (ECF No. 30, ¶ 5; ECF No. 33, ¶ 1). Butia became a Certified Public Accountant in 1978, but for all times relevant to this action, had let her certification lapse into inactive status. (ECF No. 33, ¶ 2). Beginning in 1979, Butia was employed by Mellon Financial Corporation. Plaintiff began her career at Mellon serving as a controller in the collections services group, rising to a position as a manager in the group in 1988, and remaining in the department until 1995. (ECF No. 26-3, pp. 4-5). During the years 1996-1999, Plaintiff worked in service delivery, where she “worked on developing business recovery plans, risk assessment documents” in instances where a business would lose office space or other systems. (ECF No. 26-3, pp. 4-5). For the period 1999 through 2004, Plaintiff worked in securities processing, eventually becoming a Vice-President and Manager of Securities Processing. (ECF 26-3, p. 4). Plaintiffs job responsibilities required her to prepare “monthly expense management reports for the group to senior management.” Id. In 2004, Butia joined Mellon’s Reconciliation Services Group (“RSG”), where she remained until her eventual termination.
The RSG functioned to cross-check certain cash and securities transactions to ensure that the correct securities were added to or withdrawn from the correct client account, and to reconcile any inconsistencies. Plaintiff joined the RSG as an Operations Manager of Back Office Cash and SIG Reconciliation. Judy Eiben, a woman older than Plaintiff, served as the Managing Director of the RSG. (ECF No. 26-3, p. 5). Eiben previously had supervised Plaintiff and had reduced Plaintiff’s pay grade from pay grade 11 to pay grade 10, and moved her from an outside office to a cubicle. Plaintiff attributes these moves, which she concedes had a detrimental impact on her career at Mellon, to a personality conflict. (ECF No. 26-3, p, 19).
In late 2004, Judy Eiben hired Stuart Smith (“Smith”) as Manager of the RSG. Smith was compensated at pay grade 12 or greater, and at the time Smith was hired, he was approximately 35 years old. (ECF No. 26-1, ¶¶ 7-13, 26). Smith’s directives from Judy Eiben were to manage the RSG’s operations, centralize its reconciliation processes and functions, implement standardized technology to support the RSG’s processes, and attempt to move reconciliation services work to a lower cost center in India. (ECF No. 26-1, ¶15). Plaintiff concedes that she was not qualified to apply for Smith’s position. (ECF No. 26-3, p. 5). Plaintiff also candidly admits that in the years she worked for Smith, she never heard him make any derogatory remarks about anyone based on gender or age. (ECF No. 26-3, p. 13). Butia believes, however, that Smith discriminated against her based upon her age and sex when he re-engineered the RSG, leading to the elimination of her position and her termination. (ECF No. 26-3, p. 4).
In early 2005, Smith hired Jay Kucinic, a male, as a project manager at pay grade 12. (ECF No. 28-5, pp. 11-14). As a project manager, Kucinic was to assist in the development of a reconfiguration process. Smith’s goal was to centralize cash reconciliation with one person, centralize securities reconciliation with another person, and centralize and standardize reporting with a third person. (ECF No. 28-5, p. 10). In addition, Smith sought to standardize department functions and technology.
One of the first changes was to transition Butia to a new non-operations position as Manager of Reporting and Risk. This move was in conjunction with Smith’s goal of standardizing and consolidating the financial reporting produced by the group. (ECF No. 26-1, ¶ 28). Plaintiff states that this project position was “part of the plan from the beginning, ” and was created by Smith’s predecessors Joe Rossi and Steve Towbridge. (ECF N. 26-3, p.10).
Until this change, the reporting functions were split between two groups – U.S. transactions and non-U.S. transactions. (ECF No. 26-1, ¶ 29). Brad Skrlac, an Operations Manager, performed the U.S. reporting functions, and Emily Sutliff, an analyst located in Everett, Massachusetts, performed the non-U.S. reporting functions.
As Manager of Reporting and Risk, Butia no longer served as an Operations Manager, and no longer supervised eight employees in the Back Office Cash group. However, her compensation remained unchanged and Butia assumed supervisory responsibility over Emily Sutliff, who continued to work in Everett, Massachusetts. Butia would meet with Sutliff personally several times a year. (ECF No. 26-1, ¶¶ 29-35; ECF No. 26-3, pp. 38-39 (diagrams of staffing changes)). Plaintiff remained in this position until her termination. Plaintiff contends that at the time of the position change, she voiced concerns about her reduced supervisory role to Smith and to a representative in Human Resources, but acknowledges that her move into the position of Manager of Reporting and Risk was voluntary. In addition, she did not voice any concern that the move occurred because of her age or sex. (ECF No. 26-3, p. 10). Smith testified that the move was designed to provide Butia with some project management experience. (ECF No. 26-4, p. 16).
At the time of this transition, the RSG’s three other Operations Managers were men. Anthony So, born on January 18, 1964, was Operations Manager of Global Cash, Global Securities, and Global Suspense. (ECF No. 26-5). So was located in the Everett, Massachusetts office, where he supervised 6 employees based in the United States and sixteen employees located in India. Sylvester Hairston, an African-American located in Pittsburgh, Pennsylvania, was born on January 9, 1952, and served as Operations Manager of U.S. Suspense, handling U.S. Cash reconciliation. Hairston supervised nine employees. Id. Butia’s former operations responsibilities over Back Office Cash and SIG were transferred to Brad Skrlac, who performed these functions as well as his own existing duties as Operations Manager over U.S. Depository and DDA Reconciliation. In this position, Skrlac supervised eleven employees. (ECF No. 26-1, ¶ 36; No. 26-3, p. 39). Brad Skrlac was born on October 31, 1972. (ECF No. 26-5).
Pursuant to Eiben’s directive, Smith continued to move certain operations to India and by December 1, 2005, there were approximately 20-22 full-time RSG employees in India (ECF No 26-1, ¶ 46). In 2006, the RSG again was reconfigured so that new functional titles were created for each reconciliation services job, and all employees were “mapped” to the appropriate position. (ECF No. 26-1, ¶ 48, No. 26-3, p. 42).
As part of the mapping, Plaintiff continued to perform the job of Manager of Reporting and Risk; however, based on her salary grade, she was given the new title of Recon Services Group Manager II, pay grade 11. Prior to the title change, Smith had increased Butia’s compensation from pay grade 10 to pay grade 11, to address the fact that she was near the top of pay grade 10 and would otherwise not be eligible for merit raises. He also wanted to recognize Butia’s good performance. (ECF No. 26-1, ¶¶ 25-27; ECF No. 26-4, p. 12). By March 2006, Plaintiff supervised two employees, one located in Pittsburgh and Emily Sutliff, who remained in Everett Massachusetts.
In conjunction with remapping the department, Anthony So and Sylvester Hairston were given titles of Recon Services Group Manager I, at pay grade 10. Brad Skrlac was removed from his role as an Operations Manager to become one of three Project Managers reporting to Jay Kucinic. (ECF No. 26-3, p. 42). His pay grade, as well as the pay grades of the other two project managers, Karen Cain and Rebecca Dammeyer, was set at pay grade 10. Skrlac’s former functions were handed over to Randy Rihmland, age 41. Over the course of the transition, Rihmland was given the new title Recon Services Group Manager II, based on his salary grade at pay grade 11. (ECF No. 26-1 ¶¶ 50, 63; No. 26-3, pp. 11-12, 42-45).
Rihmland joined the RSG from a strategic operations group, where he had been a project manager and had authored a book on operations management that was in the process of being published. Rihmland also had extensive re-engineering experience, which was consistent with the RSG’s overall strategy. (ECF No. 26-1, ¶ 65). After taking over Skrlac’s position, by March 2006, Rihmland supervised twelve employees. (ECF No. 26-1, ¶ 66, ECF No. 26-3, p, 45). Id. By December 2006, the number of RSG employees in India had increased to 25 as more RSG functions were shifted out of the United States, and the number of RSG employees in the United States was reduced, with Rihmland supervising eight employees. (ECF No. 26-3, p. 45). Plaintiff continued to supervise two employees.
In 2006, Eiben and Smith approved Six Sigma (process improvement) training for each of the three Project Managers reporting to Jay Kucinic – Karen Cain, Rebecca Dammeyer and Brad Skrlac. (ECF No. 26-1, ¶ 59). Smith did not approve the training for any of the Operations Managers that reported to him, including Plaintiff. Plaintiff requested the training and forwarded her request to a senior manager, several levels above Smith. However, she was told that there were only three Six Sigma projects available and the projects were to be assigned to the three Project Managers. Of the three Project Managers, two were women. (ECF No. 26-3, p. 13).
During this same period, Mellon Financial Corporation changed its stock option compensation plan. Under the new plan, only employees who occupied pay grade 12 or greater met the eligibility criteria for an award of stock options. Employees who occupied jobs below pay grade 12 could receive a stock option award if (1) he or she received an award in 2004, and (2) his or her manager recommended that they receive an award. However, managers were not required to recommend stock awards to participants in salary grades 11 or below. (ECF No. 26-1, ¶¶ 38-41).
Plaintiff received stock options in the years 1997 through 2004, but did not receive stock options after the change in policy. At the time the change went into effect, she was at pay grade 11. Stuart Smith decided not to recommend stock options for any employees under his supervision at or below pay grade 11. (ECF No. 26-1, ¶¶42-44). Plaintiff alleges that two younger males did receive stock options in her department, Kucinic and Stuart Smith; however, she concedes they were at least at pay grade 12, and therefore patently eligible. (ECF No. 26-3, pp. 6-7). Plaintiff believes that other employees were “grandfathered” and provided stock options, but the only individual identified by her, Colleen Krugh, was employed in the Asset Servicing department and supervised by another manager. BNY Mellon indicates that Ms. Krugh’s date of birth is November 3, 1952, making her one year older than Plaintiff.
On July 1, 2007, Mellon Financial Corporation merged with The Bank of New York, forming BNY Mellon. The parties agree that one of the goals after the merger was to move work from high cost to low cost centers, such as India. (ECF No. 26-1, ¶ 70). During the post-merger transition, additional RSG Operations functions were relocated out of the United States and by July 2007, there were 31 RSG employees in India. (ECF No. 26-1, ¶ 76).
In December 2007, Kevin Smith became the managing director of the RSG and assumed the role of Stuart Smith’s supervisor. (ECF No. 26-1, ¶ 75). By this time, Karen Cain, Rebecca Dammeyer and Jay Kucinic had left RSG and their positions as Project Managers. Brad Skrlac was the only remaining Pittsburgh-based Project Manager. (ECF No. 26-1, ¶¶ 78-79). Skrlac was assigned as the Project Manager Re-Engineering Offshore. Before her departure, Rebecca Dammeyer had been the Work Flow Project Manager. (ECF No. 26-3, p. 49).
On March 31, 2008, Smith hired John McCracken, age 34, as a Project Manager, to be located with him in Everett, Massachusetts, at pay grade 10. (ECF No. 26-1, ¶ 80, 26-3, p. 51). Prior to joining Mellon, McCracken had conducted project management work in a technology group where he had reconfigured new computer websites. In addition, McCracken had performed technology-based automation projects involving reconciliation processes and possessed technical skills not otherwise available to the RSG. McCracken was not a college graduate, but he had several years of project experience. (ECF No. 33, ¶¶ 3-4, 6; ECF No. 31, ¶ 20). Smith reached out to McCracken when the Everett-based opening was created. He had previously met McCracken when McCracken worked at Mellon as an outside computer and networking technician. (ECF No. 26-4, pp. 25-26; ECF No. 26-1, ¶¶ 80-83). McCracken, like Butia, did not have any Six Sigma training, but he was hired “purely because of his technology background. His experience was with relational data bases and developing small technology solutions for reconciliations.” (ECF No. 26-4, p. 26). Plaintiff did not apply for the Everett-based project manager position, nor did she apply to replace Kucinic or Dammeyer. (ECF No. 26-3, p. 16 (transcript p. 61, lines 13-19)).
In April 2008, the RSG had offices in Pittsburgh, Brooklyn, New York, and Syracuse, New York. Plaintiff continued to supervise two employees, Rihmland supervised twelve employees, and Skrlac was working on a loan project. McCracken was located in Massachusetts and 33 employees were performing RSG operations in India with operations assistance from So and Hairston.
At the time of the merger, BNY’s Syracuse reconciliation group was managed by a woman, Lula Staples (“Staples”). Staples was born on March 6, 1946. Shortly after the merger and realignment, the Syracuse office was reduced to three employees as additional reconciliation operations were moved off-shore or to Pittsburgh. (ECF No. 26-1, ¶¶ 73, 87-89). In July 2008, Kevin Smith decided to close the Syracuse office and consolidate all BNY reconciliation work into Mellon’s RSG. Lula Staples was offered the opportunity to transfer to Pittsburgh, but she declined and opted to retire. Id.
Around this same time period, Butia began applying for other BNY Mellon positions outside of her department. Butia agrees that Smith recommended several open positions to her, for which he thought she was a good candidate. However, Smith did not contact any other group managers on her behalf because he was not in the practice of extending personal referrals for his employees. (ECF No. 26-1, ¶¶ 90 – 91). Butia applied for several openings, even those for which she felt she was overqualified, but was rejected as having insufficient current financial experience. These positions included functioning as a Team Leader - Private Wealth Management Risk and as a Team Leader - Risk Manager for Asset Servicing. (ECF No. 26-3, pp. 16-17, 19-20).
Smith classified Butia as a “strong performer” in her annual reviews. (ECF No. 26-1, ¶ 92). When discussing career options for growth, Butia indicated that she was unwilling to relocate out of Pittsburgh for another BNY Mellon position. (ECF No. 26-3, p. 20).
In the middle of 2008, BNY Mellon conducted a “reduction in force exercise” and Kevin Smith instructed Smith to identify opportunities to reduce the number of individuals directly reporting to him. (ECF No. 26-1, ¶ 96, ECF No. 26-4, p. 31). Smith’s “direct reports” included Operations Managers Anthony So, Sylvester Harrison, Randy Rihlmand; Reporting Manager Butia; and Project Managers Brad Skrlac and John McCracken. Smith made the decision to recommend Butia’s termination and the reassignment of her reporting duties to Brad Skrlac, who had performed reporting work prior to the initial 2005 reorganization of the RSG. (ECF No. 26-4, p. 32).
In his deposition, Smith testified that after examining each of his direct reports, Butia’s position was the only position that readily could be absorbed by another manager, specifically Skrlac. His decision was predicated upon how he could move responsibilities to consolidate the department. He also reviewed each employee’s “skill sets, expertise, and where there was the least risk. Meaning giving someone functions that they had never done before versus moving work around to people that had previously done that work before.” (ECF No. 26-4, pp. 31 – 32). He determined that actual operations work was “the most risky” and viewed So, Hairston and Rihmland as too important to eliminate at the time.
According to Smith, So was the architect of the Global Custody Recon Process and was directly supporting the RSG operations in India. Hairston’s group of employees was producing additional work and required his supervision and expertise. Both men were viewed as the “subject matter experts” who were called often to resolve issues and who were necessary to continue migrating operations work to India or, in the case of SIG Reconciliations, to organize the cessation of operations altogether. (ECF No. 26-4, pp. 32 – 33). Further, Rihmland had extensive project ...