United States District Court, W.D. Pennsylvania
Stewart Cercone United States District Judge
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
Statement of the Case
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.
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
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.
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.
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.
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
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.
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. Def. SUMF ¶
41. PNC assigned Senior Employee Relations Investigator Jean
Olenak (“Olenak”) to investigate Neustein's
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.
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.
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.
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.
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.
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.
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” ...