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Neustein v. PNC Bank, NA

United States District Court, W.D. Pennsylvania

July 25, 2017

PNC BANK, NA, Defendant.


          David Stewart Cercone United States District Judge

         I. Introduction

         Plaintiff, Seth Neustein (“Neustein” or “Plaintiff”) filed a five (5) count Complaint alleging: (1) religious discrimination and retaliation in violation of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII)”) (Counts I & II); (2) hostile work environment and retaliation in violation of his rights under the Americans With Disabilities Act of 1990, 42 U.S.C. §§12101, et seq. (the “ADA”) (Counts III & IV); and (3 violation of his rights under the Pennsylvania Human Rights Act, 43 Pa. Cons. Stat. Ann. § 925 et seq. (the “PHRA”), against Defendant, PNC Bank NA (“PNC” or “Defendant”). PNC has filed a motion for summary judgment, Neustein has responded and the motion is now before the Court.

         II. Statement of the Case

         Neustein was hired by PNC on March 10, 2008, as a Network Services (“NWS”) Analyst-Desktop Technologies in its Network Solutions-Technology Asset Management department. Defendant's Statement of Undisputed Material Facts (“Def. SUMF”) ¶ 1. As an Analyst, Neustein was responsible for ensuring the proper operation of PNC's desktop technology systems. Id. Upon his hire, Neustein acknowledged that he had reviewed PNC's Code of Business Conduct and Ethics and understood that he was required to comply with the rules, standards and values set forth therein. Def. SUMF ¶ 2. PNC also provided him with annual training on the Code of Business Conduct and Ethics. Id. Neustein also acknowledged that he would review, and comply with, the PNC Employee Manual. Id.

         The PNC Employee Manual contains a separate Bias and Harassment Policy (“BHP”) which provides that “PNC will not tolerate harassment, bias or other inappropriate conduct by a manager, supervisor, employee, customer, vendor or visitor.” Def. SUMF ¶ 5. The purpose of the BHP is to “ensure that PNC employees are provided a work environment free of bias, harassment and other inappropriate conduct.” Id.

         The BHP obligates employees who believe that they or others have been subject to misconduct to report that misconduct. Def. SUMF ¶ 6. To ease the reporting of any misconduct, the BHP provides employees with five alternatives for making a report: (1) to a Supervisor; (2) to a Human Resources Business Partner; (3) to the Employee Relations Information Center (“ERIC”); (4) to the Corporate Ethics Office; and/or (5) the Business Conduct and Ethics Hotline. Id. Neustein was aware that PNC had a policy prohibiting discrimination, and knew that there were individuals who he could contact to voice any concerns about discrimination, including the ERIC. Def. SUMF ¶ 9.

         Initially, Neustein reported to NWS Manager Arlene Cook (“Cook”). Def. SUMF ¶ 10. Beginning in 2009, Cook reported to Manager I Technology David Byers (“Byers”), who reported to Manager II Technology Sandra Barnhill (“Barnhill”). Id. In or around early 2010, Neustein began reporting directly to Byers, who continued to report to Barnhill. Id.

         On October 6, 2009, Neustein called the ERIC to report that his managers were giving him a hard time about taking days off, including for the Jewish holiday of Yom Kippur and that he felt that he was being discriminated against based on his religion, Judaism. PNC Appendix (“PNC App”) Ex. A, Neustein Depo. pp. 186-187. PNC assigned Senior Employee Relations Investigator Jodie Fine-Sheriff (“Fine-Sheriff”) to investigate Neustein's concerns of religious discrimination. Def. SUMF ¶ 12; PNC App Ex. D, Fine-Sheriff Declaration (“F-S Decl.”) ¶ 5. Based on her investigation, Fine-Sheriff determined that Cook did not discriminate against Neustein, that Neustein was granted all the time off that he requested, and that his claims of religious discrimination were unfounded. F-S Decl. ¶ 8.

         On April 2, 2010, Neustein again called the ERIC to report that Byers and Barnhill would not allow him to enter time off for Passover as time off for religious observation, but wanted him to enter it as vacation time. Def. SUMF ¶ 14. Byers and Barnhill reached out to the ERIC for guidance, and were told that Neustein should record the time off as vacation time. Id.

         On June 23, 2010, Neustein called off sick and visited his primary care physician, Dr. Joseph Trompeter (“Dr. Trompeter”), complaining of congestion and a cough. Def. SUMF ¶¶ 24 & 25. Though Neustein discussed with Dr. Trompeter the fact that mold had been found in his home, which Dr. Trompeter thought might have contributed to his condition, Dr. Trompeter diagnosed Neustein with whooping cough. Def. SUMF ¶ 25. When Neustein returned to work the next day, he told Byers that he had a potential fungal infection in his lungs. Def. SUMF ¶ 26.

         In or around July 2010, PNC informed Neustein that he was being moved from his office in downtown Pittsburgh, to Allegheny Center, located on the North side of Pittsburgh. Def. SUMF ¶ 34. Neustein alleges that when Barnhill informed of the move, she accused him of faking his medical condition, called him an anti-Semitic name, and told him that she was going to isolate him and move him “somewhere away from everybody else.” Def. SUMF ¶ 35. Though Barnhill and Byers contend they made the decision to reassign Neustein to Allegheny Center due to work volume, and because his supervisor worked in Allegheny Center, Neustein contends that he was never told the reasons he was being moved. Def. SUMF ¶ 36; Plaintiff's Response to Concise Statement of Material Fact (“Pl. Resp.”) ¶ 36. On July 13, 2010, Neustein called the ERIC to report that Byers and Barnhill were violating his medical restrictions by requiring him to move to a different PNC building[1]. Def. SUMF ¶ 41. PNC assigned Senior Employee Relations Investigator Jean Olenak (“Olenak”) to investigate Neustein's concerns. Id.

         Neustein indicated that his concern regarding his move to Allegheny Center was that he would be required to regularly walk back and forth between Allegheny Center and PNC's locations in downtown Pittsburgh. Def. SUMF ¶ 38. Such requirement would violate his medical restrictions. Id. In that regard, Neustein submitted documentation to PNC on July 20, 2010, that indicated that he should not be in dusty areas, crawling, lifting more than 6 to 8 pounds or walking more than 150 yards. Id. Barnhill discussed Neustein's medical restrictions with Employee Relations, and it was determined that they could accommodate those restrictions by having him work at Allegheny Center. Def. SUMF ¶ 39.

         As part of her investigation, Olenak spoke with Neustein, who alleged that Barnhill had made anti-Semitic comments to him. Def. SUMF ¶ 42. Specifically, Neustein alleged that Barnhill said: “You dirty Jew I know you're faking this and you'll pay for this.” Def. SUMF ¶ 43. Neustein further alleged that after he requested time off for Passover, Barnhill said, “Look here you uppity Jew, I can discipline you for whatever I want. You do not get days for Passover.” Id. Barnhill denied making such statements. Def. SUMF ¶ 44.

         As part of her investigation, Olenak spoke to Byers, as well as other employees who may have heard comments by Barnhill, however, no one corroborated Neustein's allegations. Def. SUMF ¶ 49; Pl. Resp. ¶ 49. Olenak found that the allegations made by Neustein were unfounded. Olenak, however, specifically stated, “I was having trouble that this is something Seth would make up. I told Seth I believe the truth is in the middle, ” and that she could defend a termination of neither Barnhill nor Neustein. Pl. Resp. ¶ 50.

         On or about July 26, 2010, Neustein became a Technical Project Manager, managing technology related projects for PNC. Def. SUMF ¶ 51. During the last quarter of 2010, PNC allowed Neustein to begin working from home because of his medical condition. Def. SUMF ¶ 52.

         In or around May 2013, Neustein began reporting to Manager I Technology Cheryl Klippa (“Klippa”). Def. SUMF ¶ 54. Klippa oversaw a team that included Neustein, Senior Software Engineer, Nathaniel Snyder (“Snyder”), Business Systems Analyst, Erika Trageser (“Trageser”), and Quality Analyst, Karen Scansaroli (“Scansaroli”). Def. SUMF ¶ 55. Neustein and Snyder were college friends, and Neustein helped Snyder get his job with PNC. Def. SUMF ¶ 56. Moreover, Neustein was dating Snyder's sister at that time. Id.

         In or around the summer of 2013, Neustein contends that Klippa ordered him to stop attending physical therapy because she needed him to work “basically nonstop.” Def. SUMF ¶ 60. Neustein agreed to stop attending physical therapy, but advised Klippa that it had to be temporary because it would take a toll on his health. Def. SUMF ¶ 61; Pl. Resp. ¶ 61. Once Neustein began attending physical therapy again, he alleges that Klippa continuously tried to prevent him from attending physical therapy or doctors' appointments. Def. SUMF ¶ 63. Neustein complained to PNC Senior Employee Relations Investigator, Lenette Seibel (“Seibel”), about Klippa's actions. Pl. Resp. ¶ 64.

         In August 2013, during a conference call with Klippa and Snyder, Neustein told Klippa that he needed to take two days off in September for the Jewish holiday of Rosh Hashanah. Def. SUMF ¶ 65. Klippa, however, was scheduling an installation to take place during those days, and insisted that Neustein work on Rosh Hashanah. Def. SUMF ¶ 66. Klippa told Neustein that even though he was scheduled for vacation during Rosh Hashanah, he had to be available if any work issue arose. Pl. Resp. ¶ 66. Neustein contends that during this conference call, Klippa referred to Rosh Hashanah as a “supposed” or “made-up” ...

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