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Berezansky v. CNB Bank and CNB Financial Corp.

United States District Court, W.D. Pennsylvania

September 30, 2019

ROBERT S. BEREZANSKY, Plaintiff,
v.
CNB BANK AND CNB FINANCIAL CORPORATION, Defendants.

          MEMORANDUM OPINION

          KIM R. GIBSON, JUDGE

         I. Introduction

         Pending before the Court is Defendants CNB Bank and CNB Financial Corporation's (collectively, "Defendants" or "CNB") Motion for Summary Judgment (ECF No. 32) on Plaintiff Robert Berezansky's retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 955, as well as Plaintiff's age discrimination claim under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. The Motion is fully briefed (ECF Nos. 33, 34, 35, 38, 39, 40, 41, 42, 39, 44, 45, 46, 47) and ripe for disposition. For the reasons that follow, the Court will grant Defendants' motion in part and deny it in part.

         II. Jurisdiction

         This Court has subject-matter jurisdiction because Plaintiff's Title VII and ADEA claims arise under federal law. 28 U.S.C. § 1331. This Court also has supplemental jurisdiction over Plaintiff's PHRA claim because Plaintiff's PHRA claim "form[s] part of the same case or controversy" as the Title VII and ADEA claims. 28 U.S.C. § 1367. Venue is proper because a substantial part of the events giving rise to Plaintiff's claims occurred in the Western District of Pennsylvania. 28 U.S.C. § 1391(b)(2).

         III. Factual Background[1]

         A. The Johnstown Office

         This employment discrimination case arises from alleged acts of retaliation and age discrimination taken by CNB against Plaintiff.[2] (ECF No. 34 ¶ 1; ECF No. 40 ¶ 1.) CNB employed Plaintiff as Vice President of Commercial Lending at CNB's Johnstown, Pennsylvania office (the "Johnstown Office"), and Plaintiff was responsible for both management and loan production in the Johnstown Office. (ECF No. 34 ¶ 2-3; ECF No. 40 ¶¶ 2-3, 102; ECF No. 44 ¶ 102.) In December of 2007, CNB promoted Plaintiff to Senior Vice President of Commercial Lending. (ECF No. 40 ¶ 103; ECF No. 44 ¶ 103.) CNB established the Johnstown Office for the purpose of commercial lending, but the office was not considered a branch, and it did not produce wealth and asset management and trust business. (ECF No. 34 ¶ 4; ECF No. 40 ¶ 4.) Plaintiff essentially developed the Johnstown Office, as CNB did not have a branch there prior to hiring Plaintiff. (ECF No. 40 ¶ 104; ECF No. 44 ¶ 104.) As part of his position in the Johnstown Office, Plaintiff hired employees for that office; employees he hired include, among others, Jennifer Mowery, Joyce Waterhouse Czyrnik, and Deborah Peak. (ECF No. 34 ¶ 5; ECF No. 40 ¶ 5.) As part of his job duties, Plaintiff supervised and reviewed the performance of all employees in the Johnstown Office. (ECF No. 34 ¶ 10; ECF No. 40 ¶ 10.) Ms. Mowery, Ms. Czyrnik, and Ms. Peak all reported directly to Plaintiff. (ECF No. 34 ¶¶ 7-9; ECF No. 40 ¶¶ 7-9.) As of 2011, the Johnstown Office "probably" had CNB's largest loan portfolio for "fee income." (ECF No. 40 ¶106; ECF No. 44 ¶ 106.)

         From the time Plaintiff first began working for CNB until January 1, 2010, Plaintiff's supervisor was Bill Falger, President of CNB. (ECF No. 34 ¶¶ 11-14; ECF No. 40 ¶¶ 11-14.) On January 1, 2010, Joseph Bower became President and CEO of CNB, having previously served as both COO and CFO of CNB. (ECF No. 34 ¶ 14; ECF No. 40 ¶ 14.) Bower and Plaintiff had a "strained" relationship. (ECF No. 34 ¶ 15; ECF No. 40 ¶ 15.) Bower had a different lending philosophy than Falger, which focused on more conservative loans that were closer to "home" rather than further afield. (ECF No. 34 ¶¶ 16-17; ECF No. 40 ¶¶ 16-17.) The parties dispute the contention CNB's lending philosophy was growing more conservative generally, or if it was simply Bower's; Plaintiff testified that loans over a certain size needed approval from the Loan Committee, of which Bower was a member-neither the loan officer nor the President had sole authority to approve those loans. (ECF No. 34 ¶¶ 15-17; ECF No. 40 ¶¶ 15-17.) Bower testified in his deposition that he instructed Plaintiff to increase his lending in the areas of manufacturing and small business in the Johnstown area, and away from lending in areas like West Virginia and Philadelphia. (ECF No. 34 ¶ 19; ECF No. 40 ¶ 19.) During Bower's time as President, the Johnstown Office failed to meet its production goals. (ECF No. 34 ¶ 20; ECF No. 40 ¶ 20.)

         It is undisputed that the Johnstown Office's loan portfolio was initially "very good," but the parties dispute if its quality decreased while Plaintiff ran the office. (ECF No. 34 ¶ 22; ECF No. 40 ¶ 22.) In addition, the parties dispute whether loans in Plaintiff's portfolio resulted in "charge-offs, "[3] and whether Plaintiff made a loan which he was specifically instructed not to make. (ECF No. 34 ¶ 23; ECF No. 40 ¶ 23.) As a result of a "cultural change" in lending at CNB, Bower asked Plaintiff to prepare a plan to increase the Johnstown Office's small business lending; Bower reviewed it, but apparently did not approve it, though there is no evidence that he disapproved it. (ECF No. 34 ¶ 27; ECF No. 40 ¶ 27.)

         Bower believed that Plaintiff showed a lack of knowledge during loan presentations and that he had been holding back information on credits and loan applications he passed to CNB; Plaintiff disputes these allegations. (ECF No. 34 ¶ 30; ECF No. 40 ¶ 30.) Bower also allegedly confronted Plaintiff about holding back this information, after which Plaintiff "fired back" with allegations of disparate treatment; Plaintiff denies such a confrontation ever occurred. (ECF No. 34 ¶ 31; ECF No. 40 ¶ 31.) Bower instructed Plaintiff not to interact with a particular customer; Plaintiff disregarded this instruction, and maintained a business relationship with the loan customer, who was in default. (ECF No. 34 ¶¶ 32-33; ECF No. 40 ¶¶ 32-33.) Plaintiff alleges that Bower later gave him permission to interact with that customer again. (ECF No. 34 ¶ 33; ECF No. 40 ¶ 33.)

         B. Plaintiff's Claims of Disparate Treatment

         CNB has a Productive Work Environment Policy that forbids all forms of harassment and discrimination. (ECF No. 34 ¶ 34; ECF No. 40 ¶ 34.) At some point before his termination, [4]Plaintiff spoke to Bower about disparate treatment of female employees at the Johnstown Office; these allegations included people "staring" at women, looking down blouses, and looking up dresses. (ECF No. 34 ¶¶ 35-36; ECF No. 40 ¶¶ 35-36.) Plaintiff also allegedly spoke to Bower about how female lenders were not invited to golf outings, and Ms. Mowery claims that the female employees were told "they could drive the beer cart," but couldn't golf with the men. (ECF No. 34 ¶ 37; ECF No. 40 ¶ 37.) During one such golf outing, Bower allegedly urinated in front of several female employees. (ECF No. 40 ¶ 37.) Bower recalled having two conversations with Plaintiff about unfair treatment of female employees, but does not recall Plaintiff being able to provide specifics regarding alleged disparate treatment; Plaintiff disputes these claims. (ECF No. 34 ¶¶ 41-42; ECF No. 40 ¶¶ 41-42.). On May 19, 2011, Ms. Mowery was disciplined for raising her voice during a telephone call with Mark Breakey, the head of CNB's credit department; the alteration allegedly included Mr. Breakey being "rude and nasty," calling Ms. Mowery "an MF," and both parties "los[ing] it." (ECF No. 34 ¶¶ 38-39; ECF No. 40 ¶¶ 38-39.)

         The parties dispute the testimony regarding the disparate treatment the female employees suffered. (ECF No. 34 ¶ 43; ECF No. 40 ¶ 43.) Ms. Czyrnik and Ms. Mowery may have complained about various activities of senior management, but Ms. Czyrnik does not remember "who said what," or any specific complaints. (ECF No. 34 ¶ 43; ECF No. 40 ¶ 43; ECF No. 44 ¶ 43.) Ms. Czyrnik does not recall if she ever complained to Plaintiff of harassment or disparate treatment, but she does recall discussions regarding senior management treating women in a way that made them uncomfortable; she also recalls that she personally did not feel uncomfortable with how male colleagues treated her. (ECF No. 34 ¶ 44; ECF No. 40 ¶ 44.)

         Plaintiff alleges that the female employees were underpaid, but Bower does not recall having any conversations with Plaintiff regarding salary, and Plaintiff had no salary data. (ECF No. 34 ¶ 45; ECF No. 40 ¶ 45.) In addition, Ms. Czyrnik felt she was fairly compensated for her work at CNB. (ECF No. 34 ¶46; ECF No. 40 ¶ 46.) Plaintiff's complaints particularly related to Ms. Mowery, who had been awarded lender of the year, but Plaintiff believed that she was one of the lowest paid lenders; Ms. Mowery does not recall ever complaining about her compensation. (ECF No. 40 ¶ 115; ECF No. 44 ¶ 115.) Plaintiff did, however, recall having conversations with Mr. Breakey regarding employee compensation. (ECF No. 40 ¶ 46; ECF No. 44 ¶ 46.) Despite any potential complaints, both Ms. Peak and Ms. Czyrnik felt that the Johnstown Office was a good place to work, with the exception of Plaintiff's relationship with Ms. Mowery. (ECF No. 34 ¶¶ 47-48; ECF No. 40 ¶¶ 47-48.)

         C. Plaintiff's Relationship with Ms. Mowery

         While Plaintiff and Ms. Mowery worked together at the Johnstown Office, they had a physical and romantic relationship that went "too far." (ECF No. 34 ¶ 49; ECF No. 40 ¶ 49.) Plaintiff admitted that he allocated more time for Ms. Mowery than he did for his other employees, and that Bower approached him with concerns regarding the relationship. (ECF No. 34 ¶¶ 50-51; ECF No. 40 ¶¶ 50-51.) Ms. Mowery's office behavior deteriorated during her relationship with Plaintiff, causing Ms. Peak to feel unsafe around Ms. Mowery. (ECF No. 34 ¶ 52; ECF No. 40 ¶ 52.) Ms. Peak related her unhappiness with Ms. Mowery's relationship with Plaintiff to Plaintiff, and she felt Plaintiff was more concerned with the relationship than with how the rest of the Johnstown Office felt. (ECF No. 34 ¶¶ 53-54; ECF No. 40 ¶¶ 53-54.) After the relationship between Plaintiff and Ms. Mowery was no longer secret, Ms. Peak felt that Plaintiff treated Ms. Mowery preferentially by giving her more work than Ms. Czyrnik. (ECF No. 34 ¶¶ 55-57; ECF No. 40 ¶¶ 55-57.)

         In addition, Ms. Peak recalled that Ms. Mowery and Plaintiff were often out of the office together, and that these absences were for "non-business related events." (ECF No. 34 ¶ 58; ECF No. 40 ¶ 58.) Plaintiff and Ms. Mowery traveled to Erie, Pennsylvania for a work event, and Plaintiff was instructed to take everyone in the Johnstown Office, but failed to do so; Plaintiff claims this was because there had to be people in the Johnstown Office. (ECF No. 34 ¶ 60; ECF No. 40 ¶ 60.) Ms. Peak recalls that Plaintiff threatened to fire her and Leigh Bolcho, another employee in the Johnstown Office if they were not nice to Ms. Mowery; Plaintiff denies ever making such a threat. (ECF No. 34 ¶ 62; ECF No. 40 ¶ 62.) Ms. Peak believed that the Johnstown Office began to develop a bad reputation as a result of Plaintiff's unavailability in the office and failure to return telephone calls. (ECF No. 34 ¶ 64; ECF No. 40 ¶ 64.) Ms. Peak also believed that Plaintiff and Ms. Mowery's relationship reflected poorly on the bank, and Ms. Czyrnik believed that the relationship had a negative impact on the work environment of the Johnstown Office. (ECF No. 34 ¶¶ 65-66; ECF No. 40 ¶¶ 65-66.) Ms. Czyrnik never saw Plaintiff try to alleviate the environment created by Ms. Mowery. (ECF No. 34 ¶ 75; ECF No. 40 ¶ 75.) Ms. Peak believed that Ms. Mowery behaved unprofessionally at work, was "unstable," would "blow up a lot," and may have damaged Plaintiff's car; Plaintiff does not recall Ms. Mowery ever acting unprofessionally. (ECF No. 34 ¶¶ 67-69; ECF No. 40 ¶¶ 67-69.)

         In April of 2011, Ms. Peak resigned her position at CNB, in part due to an "out of control" work environment caused by Plaintiff and Ms. Mowery's relationship. (ECF No. 34 ¶¶ 70-71; ECF No. 40 ¶¶ 70-71.) She later returned to CNB as a portfolio manager in CNB's Indiana, Pennsylvania office in July of 2011. (ECF No. 34 ¶ 94; ECF No. 40 ¶ 94.) Sometime in 2011, Ms. Czyrnik also resigned from the Johnstown Office, citing concerns with "how the Johnstown office is operating." (ECF No. 34 ¶ 74; ECF No. 40 ¶ 74.) CNB terminated Ms. Mowery on June 30, 2011, nominally for failing to follow direction from her superiors, but Plaintiff alleges that she was terminated because CNB's management was "jealous" of Plaintiff, and shortly after Plaintiff had told CNB's management that Ms. Mowery had "good grounds" for a discrimination charge. (ECF No. 34 ¶ 76; ECF No. 40 ¶ 76.)

         D. Plaintiff's Termination

         On June 23, 2011, CNB terminated Plaintiff. (ECF No. 34 ¶ 77; ECF No. 40 ¶ 77.) The stated reasons were performance deficiency, insubordination, and poor relationships in the Johnstown Office; Plaintiff contends that the real reason was in retaliation for reporting disparate treatment, which Plaintiff asserts happened less than a month before his termination. (ECF No. 34 ¶ 77; ECF No. 40 ¶ 77.) Plaintiff's termination was carried out by Bower and Rick Sloppy, CNB's Senior Lender; Bower recalls that he discussed the termination with Mr. Sloppy, Mr. Breakey, and Rick Greslick, CNB's COO. (ECF No. 34 ¶¶ 76, 82; ECF No. 40 ¶¶ 76, 82.) At some point prior to Ms. Mowery's termination, she may have told a human resources employee of CNB that she was prepared to go complain to the EEOC; the parties dispute when this happened - before or after Plaintiff's termination. (ECF No. 34 ¶ 79; ECF No. 40 ¶ 79.) Either at the time of Plaintiff's termination, or shortly after, CNB closed the Johnstown Office. (ECF No. 34 ¶ 80; ECF No. 40 ¶ 80.)

         E. Plaintiff's Post-CNB Employment

         In 2011, at the time CNB terminated Plaintiff, his salary was $121, 000. (ECF No. 34 ¶ 95; ECF No. 40 ¶ 95.) After his termination, Plaintiff entered negotiations with Somerset Trust about a position in their commercia lending division; the parties dispute if Somerset Trust ever offered Plaintiff the position -regardless, Plaintiff never began working for Somerset Trust. (ECF No. 34 ¶ 96; ECF No. 40 ¶ 96.) The parties also dispute the level of compensation Somerset Trust would have paid Plaintiff had he accepted the position. (ECF No. 34 ¶ 97; ECF No. 40 ¶ 97.) Plaintiff has not worked in the banking or lending industries since CNB terminated him. (ECF No. 40 ¶ 119; ECF No. 44 ¶ 119.) However, Plaintiff has worked at Home Depot for $10.00 per hour and at Richland Woods. (ECF No. 40 ¶ 120; ECF No. 44 ¶ 120.)

         IV. Procedural Background

         Plaintiff filed his Complaint on June 21, 2017, alleging three claims: retaliation under Title VII and the PHRA, as well as age discrimination in violation of the ADEA. (ECF No. 1.) Defendants moved to strike portions of the Complaint on September 5, 2017, which the Court denied on January 17, 2018. (ECF Nos. 6, 20.) Defendants moved for summary judgment on April 1, 2019. (ECF No. 32.) Plaintiff responded on May 1, 2019, and consented to the dismissal of the ADEA claim. (ECF No. 38 at 10.) Accordingly, this Court must only consider Defendants' Motion with respect to the Title VII and PHRA claims.

         V. ...


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