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Gethers v. PNC Bank

United States District Court, W.D. Pennsylvania

May 9, 2017

PNC BANK, Defendant

          Jalaine Gethers, pro se


          Nora Barry Fischer United States District Judge

         I. Introduction

         This action arises from pro se Plaintiff Jalaine Gethers's (“Gethers”) allegations that Defendant PNC Bank (“PNC”) violated Title VII of the Civil Rights Act of 1964 (“Title VII”). Presently before the Court are PNC's and Gethers's Motions for Summary Judgment. (Docket Nos. 42, 47). In accord with the Court's Local Rules and Federal Rule of Civil Procedure 56, PNC submitted a brief in support, (Docket No. 43); a concise statement of material facts, (Docket No. 44); and an appendix accompanying its motion, (Docket No. 46). Gethers filed a brief in support of her motion, (Docket No. 47), and a concise statement of material facts, (Docket No. 48). PNC responded with a brief, (Docket No. 49), and a counter to her concise statement of material facts, (Docket No. 50). Gethers followed up with a “preliminary statement.”[1] (Docket No. 51). The Court heard oral argument on the parties' Motions on January 9, 2017. (Docket No. 52, 56). At their request, the Court permitted them to file additional briefs and supporting evidence in order to address the evidence and arguments presented at the hearing. PNC submitted supplemental evidence with a brief in support, (Docket Nos. 58, 59), and Gethers added evidence to the record, (Docket No. 57). The parties then filed their respective responses to these filings. (Docket Nos. 60, 61). Hence, the Motions are now ripe for the Court's consideration.

         In sum, the parties' arguments focus on whether Gethers's claims are properly supported by the record to necessitate a jury trial. PNC asserts that summary judgment should be granted in its favor because: (1) Gethers failed to identify any PNC comparator employees of another race who were similarly situated to her and treated more favorably by PNC; and (2) her termination lacked temporal proximity to her alleged protected activity such that she failed to state a prima facie retaliation claim. Gethers argues that the evidence supports summary judgment in her favor because she has proven that she was terminated as a result of race discrimination and retaliation.

         For the following reasons, PNC's Motion for Summary Judgment, (Docket No. 42), will be granted, and Gethers's Motion for Summary Judgment, (Docket No. 47), will be denied.

         II. Background

         A. Local Rule 56.1 Violation

         As an initial matter, the Court notes that Gethers failed to properly respond to PNC's Concise Statement of Material Facts, (Docket No. 44), as required by Local Rule 56.C.1, despite numerous opportunities to do so. Local Rule 56.C.1 requires non-moving parties to a motion for summary judgment to file their own concise statement responding to each numbered paragraph in the movant's concise statement. See LCvR 56.C.1. The non-moving party's concise statement must admit or deny the facts contained in the movant's concise statement; set forth the basis for denial, if any fact within the movant's concise statement is not entirely admitted by the non-moving party, with appropriate citation to the record; and set forth, in separately numbered paragraphs, any other material facts at issue. See id.

         A non-moving party faces severe consequences for not properly responding to a moving party's concise statement. Any alleged material facts “set forth in the moving party's Concise Statement of Material Facts . . . which are claimed to be undisputed, will for the purpose 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.” LCvR 56.E. Yet, Gethers did not specifically reply to each paragraph in PNC's concise statement in her responses to PNC's summary-judgment motion. (Docket Nos. 47, 48, 51, 57, 60).

         Courts do provide some leniency to pro se litigants when applying procedural rules. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (“[W]e tend to be flexible when applying procedural rules to pro se litigants, especially when interpreting their pleadings.”). The Court, however, “‘is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the defendant that counsel would normally carry out.'” Id. (quoting Pliler v. Ford, 542 U.S. 225, 231 (2004)). Rather, pro se litigants must adhere to procedural rules as would parties assisted by counsel. McNeil v. United States, 508 U.S. 106, 113 (1993) (explaining that “we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel”).

         This Court “requires strict compliance with the provisions of [Local Rule 56].” E.E.O.C. v. U.S. Steel Corp., No. 2:10-CV-1284, 2013 WL 625315, at *1 n.1 (W.D. Pa. Feb. 20, 2013) (internal quotations omitted); see also Practices and Procedures of Judge Nora Barry Fischer § II.E. (i), Effective Mar. 23, 2010, availableat Documents/Judge/fischerpp.pdf. It is well settled that “failure to comply can result in penalties including the Court deeming as admitted a movant's facts where the non-movant does not properly controvert them.” Kiser v. Potter, No. 10-CV-22, 2012 WL 1134810, at *3-4 (W.D. Pa. Apr. 4, 2012) (disregarding the “Summary of Relevant Facts” section of the plaintiff's brief because “the Local Rules provide that the [responsive concise statement of material facts] is the exclusive means to controvert a movant's allegedly undisputed facts, ” which the plaintiff had failed to provide). Accordingly, to the extent Gethers's allegations of facts contained in her pro se responses do not address a particular concise statement of material fact by PNC, that concise statement of material fact will be deemed admitted. LCvR 56.E; see also Boyd v. Citizens Bank of Pa., Inc., No. 12-CV-332, 2014 WL 2154902, at *2-3 (W.D. Pa. May 22, 2014) (applying Local Rule 56.E and concluding that “to the extent [the pro se] Plaintiff's recitation of the facts do not specifically address Defendant's statement of facts, Defendant's statement will be deemed admitted”). On the other hand, the Court will consider any facts properly set forth in Gethers's pro se responses that specifically contradict PNC's statement of facts. See Fed. R. Civ. P. 56(e); Boyd, 2014 WL 2154902, at *3 (stating that “[t]o 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”).

         B. Overview of the Facts

         1. Gethers's Employment History

         Gethers is African-American and worked for PNC's Automated Clearing House (“ACH”) in Pittsburgh, Pennsylvania. (Docket No. 44 at ¶ 1). PNC initially hired her as an Operations Clerk II in April 1996. (Id.). She then worked for PNC's ACH Returns team until August 2013. (Id. at ¶ 2). Rosalind Jackson (“Jackson”), [2] who is also African-American, joined Gethers in the ACH Returns team in 1999; Jackson and Gethers became friends. (Id. at ¶ 3). Beginning in February 2013, Amy Yates (“Yates”), a manager in the ACH Operations Department, became Gethers's and Jackson's direct supervisor. (Id. at ¶ 6). Yates, who is Caucasian, see id., reported to Duane Fahrion (“Fahrion”), Operations Manager for PNC's ACH Returns, Reconcilement, Government Processing, and Compliance functions. (Docket No. 44 at ¶¶ 4, 6). Prior to February 2013, Fahrion was Gethers's and Jackson's direct supervisor, a role he began in February 2010. (Id. at ¶ 4). He promoted Gethers to a Funds Transfer Work Lead (“Team Lead”) position in October 2010. (Id. at ¶ 5). However, in March 2011, her performance review called for improvement in her attitude. (Id. at ¶ 78). Gethers's performance review for 2012 stated that she did not meet the expectations of professionalism when interacting with all levels of PNC employees. (Docket No. 57-2 at 13-14).

         2. ACH Transactions and Reg E Procedures

         Gethers and Jackson processed ACH transactions for PNC. ACH transactions allow consumers to directly debit their bank accounts to pay bills. (Docket No. 44 at ¶ 7). ACH return transactions are processed when a consumer disputes unauthorized electronic payments. (Id. at ¶ 8). Consumers disputing debits to their PNC accounts must follow PNC's procedures. (Id. at ¶ 10). The consumer must initiate the dispute by visiting a retail bank branch, contacting PNC's National Financial Service Center (“NFSC”), or using PNC's online-banking system. (Id.). PNC then asks the consumer questions to gather information regarding the dispute and enters the information into its Customer Relationship Inquiry Service System (“CRISS”). (Id. at ¶ 11). Next, the consumer must complete and sign a Written Statement of Unauthorized or Improper Debit (“WSUD”), which is then sent to the ACH Returns team. (Id. at ¶¶ 12-13).

         Because the Federal Reserve regulates ACH transactions through a group of regulations called “Reg E, ” PNC's Reg E Dispute Resolution Group (“Reg E Group”) investigates consumer return transactions. (Id. at ¶ 14). In conducting its investigations, the Reg E Group evaluates information previously entered into the CRISS system about the transaction and then communicates through CRISS to discuss the dispute with the ACH Returns team. (Id. at ¶ 16). PNC's written procedures, which Gethers “helped write, ” require the ACH Returns team to review the Reg E Group's notes entered in CRISS. (Id. at ¶¶ 17-18). But, Gethers recalled that “it was never necessarily stated that you had to submit a CRISS case.” (Docket No. 57-2 at 18). The ACH Returns team then processes the return transaction for the consumer after the Reg E Group provides its permission. (Docket No. 44 at ¶ 19). PNC maintains that employees with bank accounts at PNC must follow the same procedures as any other PNC consumer to initiate an ACH return transaction. (Id. at ¶ 21). Gethers disagreed in her deposition, stating that PNC employees could submit their proposed return transactions directly to the ACH Returns team. (Docket No. 57-2 at 16). She then acknowledged that no written policy or procedure expressly permits PNC employees to submit their returns directly to the ACH Returns team. (Id.).

         3. Events Leading to Gethers's Termination

         While on vacation on July 25, 2013, Jackson called Gethers at work and informed her that she was coming to the office to complete two WSUDs to reverse two transactions. (Docket No. 44 at ¶¶ 22-23). Yates learned about Jackson coming to the office, (Docket No. 46-4 at ¶ 14), but there are differing accounts as to what Yates did next. In her declaration, Yates states, “I informed Gethers that [Gethers] could not process the return transactions for Jackson[] and that she should not do so if Jackson came into the office.” (Id. at ¶ 15). According to Yates, Gethers later told her that she had processed Jackson's return transactions. (Id. at ¶ 16). Gethers disagreed, stating that Yates “did not tell her not to process the dispute.” (Docket No. 46-5 at 20). She continued that Yates did not say anything substantive to her about processing Jackson's return transactions. (Docket No. 46-1 at 67-68). Gethers described Yates standing between her and Jackson's desk as Jackson filled out her written statements and she processed them. (Id. at 68). She testified that Yates “looked at me, she watched me process on my screen.” (Id. at 70). Because Jackson did not initiate her ACH transactions by going to a retail branch or contacting the NFSC, information regarding the return transactions was not entered into CRISS, and the transactions were not sent to the Reg E Group for investigation. (Docket No. 44 at ¶ 26).

         After Gethers processed the return transactions for Jackson, Yates contacted PNC's Employee Relations Information Center (“ERIC”) and reported that Gethers and Jackson may have circumvented procedures. (Id. at ¶¶ 27-29). PNC Senior Employee Relations Investigator Jean Olenak (“Olenak”) opened an investigation. (Id. at ¶ 30). When Olenak spoke with Gethers and Jackson, they both admitted that the return transactions at issue had occurred. (Id. at ¶¶ 32-33). Jackson also conceded that she did not go to a retail branch or contact the NFSC. (Id. at ¶ 33). Subsequently, Olenak placed Jackson and Gethers on administrative leave while she completed the investigation. (Id. at ¶ 34). When Fahrion learned in July 2013 that Gethers and Jackson circumvented procedures for ACH transactions, he provided Olenak with documents showing the transactions Gethers processed for Jackson. (Docket No. 46-3 at ¶¶ 12-13). Olenak found that Gethers had processed at least nine return transactions for Jackson between May and July 2013 without using the proper procedures. (Docket No. 44 at ¶¶ 35-36).

         Olenak concluded that both Jackson and Gethers had violated PNC's code of ethics and, specifically, the provisions regarding conflicts of interest, by circumventing the procedures for processing and approving Jackson's return transactions. (Id. at ¶ 41). The code of ethics, which requires employees to “always act in a professional, honest and ethical manner when conducting your activities with and on behalf of PNC, ” provides:

We are expected to make sound business decisions in the best interests of PNC, undistorted by personal interests. A conflict exists when personal interests influence decisions that should be made solely on behalf of PNC or its clients.
We must never use our position at PNC for inappropriate personal gain or advantage to us or a member of our family. Any situation that creates a conflict of interest between personal interests and the interests of PNC should be avoided.

(Id. at ¶¶ 42-43). The code of ethics delineates employee responsibilities and additional responsibilities of PNC leadership as follows:

Employee Responsibilities
As a PNC employee, you are responsible for understanding and adhering to this Code.
> Always act in a professional, honest, and ethical manner when conducting your activities with and on behalf of PNC.
> Be familiar with the information contained in this Code and related ethics, human resources, and compliance policies. In addition, you should be well versed in any specific policies that pertain to your job responsibilities.
> Do not engage in or tolerate inappropriate harassment of, discrimination against, or bias toward another employee.
> Provide all required notifications and obtain necessary approvals. If you are in doubt as to whether or not notification or approval is required in a particular situation, seek guidance from your supervisor, manager, or the Corporate Ethics Office.
> Never ask another employee to do something that would be prohibited by this Code.
> Cooperate and provide honest and accurate information in investigations, regulatory examinations, audits, and similar ...

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