EDWARD G. SMITH, District Judge.
The plaintiff initiated this action against the defendant, her former employer, alleging that her termination as a bank teller violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. As revealed in the briefing and at oral argument, the theme of this case is that the defendant committed a behind-the-scenes "assault on [the plaintiff's] employment" because she had gotten too old.
The plaintiff, Kathleen M. Williams, commenced this action by filing a complaint on April 23, 2014, against the defendant, Wells Fargo Bank. Doc. No. 1. The defendant filed an answer to the complaint on June 3, 2014. Doc. No. 3. The defendant filed a motion for summary judgment, a supporting brief, a statement of material facts, and accompanying evidentiary materials on December 22, 2014. Doc. No. 20. One day later, the plaintiff filed a motion to compel depositions or, in the alternative, to modify the controlling scheduling order. Doc. No. 21. That same day, the court entered an order granting the motion in part and extending the deadlines to complete discovery and to file a response in opposition to the outstanding motion for summary judgment. Doc. No. 22. After a telephone conference with counsel, the court further extended the time for the plaintiff to file a response to February 13, 2015. Doc. No. 27. On that date, the plaintiff filed a counter-statement of facts and an index of documents used to oppose the motion for summary judgment. Doc. Nos. 28-32. Two days later, she filed a responsive brief. Doc. No. 33. The defendant filed a reply brief on February 20, 2015. Doc. No. 34. The court held oral argument on the motion on March 13, 2015.
The plaintiff was born on December 30, 1958. Pl.'s Answer to Def.'s Statement of Undisputed Material Facts ("Pl.'s Answer") at ¶ 1, Doc. No. 32; Statement of Material Facts ("Def.'s Statement") at ¶ 1, Doc. No. 20-1. The plaintiff began working as a bank teller for a predecessor to the defendant in 1983. Pl.'s Answer at ¶ 2; Def.'s Statement at ¶ 2. From 1983 until 2004 or 2005, the plaintiff continued to work as a teller for a variety of different predecessor financial institutions. Pl.'s Answer at ¶ 3; Def.'s Statement at ¶ 3; Aff. in Opp'n to Mot. for Summ. J. ("Aff.") at ¶ 5, Doc. No. 28-1. In 2004 or 2005, the plaintiff began working for Wachovia Bank at a branch located in Coopersburg, Pennsylvania. Pl.'s Answer at ¶ 4; Def.'s Statement at ¶ 4. The defendant acquired Wachovia around 2007. Pl.'s Answer at ¶ 5; Def.'s Statement at ¶ 5. From that point on, the plaintiff continued to work as a teller for the defendant in Coopersburg until the date of her termination. Pl.'s Answer at ¶¶ 6, 29; Def.'s Statement at ¶ 6.
As part of her job duties, the plaintiff handled cash transactions, served customers, addressed customer concerns, referred customers to bankers, and balanced the teller drawer. Pl.'s Answer at ¶ 7; Def.'s Statement at ¶ 7. In particular, the defendant expected the plaintiff to look for customer opportunities and to make "referrals" to other employees with the goal of generating new business. Aff. at ¶¶ 7-8. The defendant took this referral scheme quite seriously as it instituted a quota system and allowed "team members to receive credit and any related compensation for legitimate sales to, or referrals of, relatives or friends." Id. at ¶¶ 11, 14.
Phyllis A. Titus is the plaintiff's only sibling and she resides in Waxahachie, Texas. Id. at ¶¶ 15-16. Ms. Titus has two daughters named Larissa Ann Titus and Gabrielle Monque Titus. Id. at ¶ 17. Due to the fact that Ms. Titus's husband died prematurely, the plaintiff and the sisters' mother were concerned about Ms. Titus's financial welfare. Id. at ¶ 18. In fact, the mother had a specific interest in creating "some type of trust" for Ms. Titus and her daughters and specifically asked the plaintiff to inquire into whether the defendant offered any bank products in that regard. Id. at ¶ 19. The plaintiff and Ms. Titus would have mutually benefitted from any sale made as the plaintiff would have received credit against her quota and Ms. Titus would have been the beneficiary of the mother's generosity. Id. at ¶ 21. Relying on the defendant's policy concerning sales to relatives and friends, the plaintiff obtained specific authorization to begin making the relevant inquiries. Id. at ¶ 20. To the best of her knowledge, the plaintiff began making such inquiries in the summer of 2012. Id. At all relevant times, the plaintiff acted with Ms. Titus's explicit knowledge and consent. Id. at ¶ 22.
The defendant terminated the plaintiff on December 7, 2012, for violating the confidentiality policy found in its Team Member Handbook ("Handbook"). Id. at ¶ 31. The defendant has a Code of Ethics and Business Conduct ("Code") that is set forth in the Handbook. Pl.'s Answer at ¶ 19; Def.'s Statement at ¶ 19. The Handbook is distributed to employees upon hiring and is available to all employees on the defendant's intranet site. Pl.'s Answer at ¶ 19; Def.'s Statement at ¶ 19. The Code states that employees are obligated to protect confidential information about the defendant, its customers, team members, and vendors from unauthorized disclosure. Pl.'s Answer at ¶ 20; Def.'s Statement at ¶ 20. In relevant part, the Code provides that an employee "may not access confidential information without a business purpose." Aff. at Ex. C, 34. The Code applied to the plaintiff throughout the course of her employment and she understood that confidential information was limited to those with a business need-to-know. Pl.'s Answer at ¶ 22; Def.'s Statement at ¶ 22.
The proffered reason for the termination had its origin in an alleged complaint lodged by Ms. Titus in Texas. Aff. at ¶¶ 32-33. Specifically, the defendant's Human Resources Department claimed that Ms. Titus lodged a complaint on November 2, 2012, in a Texas branch over concerns with the plaintiff accessing her account. Id. at ¶¶ 32-33, 35. In turn, the Human Resources Department contacted an investigator, Scott Reeser, to begin an investigation. Pl.'s Answer at ¶ 9; Def.'s Statement at ¶ 9. Mr. Reeser conducted a minimal investigation and quickly determined that the plaintiff did not engage in any fraudulent activity. Pl.'s Answer at ¶ 11.
In fact, however, Ms. Titus never lodged a complaint against the plaintiff and had authorized her actions. Id. at ¶ 34; Pl.'s Answer at ¶¶ 10, 28. Moreover, the plaintiff had a legitimate business reason for accessing Ms. Titus's account, namely that Ms. Titus was recently widowed with two children and her family desired to help her with her finances. Pl.'s Answer at ¶¶ 14-15. Consequently, the plaintiff never violated company policy and the defendant relied on an unwritten standard in firing her. Id. at ¶¶ 23-24, 28.
As things stood on the date of her termination, the plaintiff, at fifty-four years old, was the oldest employee at the Coopersburg branch. Aff. at ¶¶ 23, 42. Prior to her termination, the defendant hired two younger employees, Pamela Englert (born in 1983) and Jennifer Kucheruck (born in 1981), on November 6, 2012. Id. at ¶ 34; Pl.'s Answer at ¶¶ 28, 32.
A district court "shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Additionally, "[s]ummary judgment is appropriate when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Wright v. Corning, 679 F.3d 101, 105 (3d Cir. 2012) (quoting Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)). An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id.
The party moving for summary judgment has the initial burden "of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). Once the moving party has met this burden, the non-moving party must counter with "`specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted); see Fed. R. Civ. P. 56(c)(1) (stating that "[a] party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . .; or . . . [by] showing that the materials cited do not establish the absence . . . of a genuine dispute").
"The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient." Daniels v. School Dist. of Philadelphia, 776 F.3d 181, 192 (3d Cir. 2015) (internal quotation marks and citation omitted). Bare assertions, conclusory allegations, or suspicions are insufficient to defeat summary judgment. See Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (indicating that a party opposing a motion for summary judgment may not "rely merely upon bare assertions, conclusory allegations or suspicions"); Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999) (explaining that "speculation and conclusory allegations" do not satisfy non-moving party's duty to "set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor."). Additionally, the non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Moreover, arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
"When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007) (citation omitted). The court must decide "not whether. . . the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson, 477 U.S. at 252. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial'" and the court should grant summary judgment in favor of the moving party. Matsushita Elec. Indus. Co., 475 U.S. at 587 (citation omitted).
The ADEA provides that "[i]t shall be unlawful for an employer . . . to discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). Under this statute, a plaintiff advancing a disparate-treatment claim "must prove, by a preponderance of the evidence, that age was the `but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). Because the plaintiff in this case has not provided direct evidence of discrimination, the court proceeds under the framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Evanoski v. United Parcel Serv., Inc., 571 F. App'x 92, 95 (3d Cir. 2014) (observing that "[w]here an employee provides no direct evidence of discrimination, we apply the familiar three-step McDonnell Douglas analysis to the employee's claim under the ADEA" (footnote and citations omitted)).
Abels v. DISH Network Serv., LLC, 507 F. App'x 179, 183 (3d Cir. 2012) (footnote and internal citations omitted).
Here, the defendant seeks summary judgment on the grounds that there is no triable issue of fact with respect to the plaintiff's ability to establish a prima facie case of discrimination and, should it be necessary to go further, to show pretext. Def. Wells Fargo Bank, N.A.'s Mem. of Law in Supp. of its Mot. for Summ. J. ("Mot. for Summ. J.") at 3-4, 6-10, Doc. No. 20. Although the plaintiff disputes these points, she does not, and could not, argue that the defendant has failed to produce evidence of a legitimate non-discriminatory reason for her termination. Aff. at ¶ 31 (stating that she "was terminated for violating the confidentiality policy found in Wells Fargo's Team Member Handbook"). The court, therefore, confines the analysis to the two grounds articulated in the summary judgment motion. As explained below, those grounds prove to be meritorious as a rational jury could not find for the plaintiff on her version of the facts, even presuming that there is actually evidence that would allow a jury to accept the entirety of that version in the first place.
Evanoski, 571 F. App'x at 95 (internal quotation marks and citation omitted). It is true that "[t]he prima facie case method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (internal quotation marks and citation omitted). Instead, this method represents "a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." Id. (internal quotation marks and citation omitted). No matter what type of evidence the plaintiff chooses to rely on, however, the constant is that any evidentiary showing must raise an inference of unlawful discrimination. See Vasbinder v. Secretary Dep't of Veterans Affairs, 487 F. App'x 746, 749 (3d Cir. 2012) (recharacterizing the fourth prong of an ADEA prima facie case as "(4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination" (citations omitted)).
In this case, the plaintiff aims to establish a prima facie case by asserting that she was replaced by two substantially younger employees, namely Pamela Englert and Jennifer Kucheruck. Opp'n to Summ. J. at 18-19; Pl.'s Answer at ¶¶ 28, 32. Taken as true, this assertion would indeed establish a prima facie case and consequently shift the burden of production to the defendant to come forward with a legitimate reason for the termination.
The replacement issue appears two times in the plaintiff's counter-statement of facts. First, the plaintiff asserts in paragraph 28 that "Walczak and Sergi fired [her] on December 7, 2012, because they already replaced her with two younger employees as soon as the investigation began. See attached Exhibit B, namely Pamela Englert, born 1983, hired November 6, 2012, and Jennifer Kucheruck, born 1981, hired November 6, 2012." Pl.'s Answer at ¶ 28. Second, the plaintiff states in paragraph 32 that "[she] was replaced by Pamela Englert, born 1983, and Jennifer Kucheruck, born 1981." Id. at ¶ 32. This latter statement is unaccompanied by any citation to the record. Thus, the only citation to record evidence to support these assertions is Exhibit B of the plaintiff's affidavit.
As to that exhibit, it appears to be an employee chart of some sort. It lists the full name of the employee, the employee's identification number, a status code, a status group, a job title, cost center, a work address, the employee's birth date, an original hire date, a termination date, an action code, an action group, and an action reason description. Aff. at Ex. B. This is the sum total of the information contained in the exhibit. Its evidentiary value must be measured by the full scale of substantive law.
Despite the seemingly fact-sensitive nature of employment discrimination cases, courts appear to adhere to the replacement prong of the prima facie case and, what is more, treat it as governed by legal standards beyond the McDonnell Douglas framework.
Given this law, then, the plaintiff's replacement theory turns out to be unsupported because Exhibit B, without more, reveals nothing about job duties. That is, there is no way to piece the information contained in Exhibit B together to figure out whether any employee performed the particular duties of any other employee. Simply listing a job title is not good enough. See Hyland, 360 F. App'x at 367 (recognizing a distinction between job titles and job duties). It is left to pure guess-work to determine from that chart when, if ever, any employee performed the duties of another employee, much less if any of those employees performed the plaintiff's duties after her termination. Under current law, however, this determination seems to be precisely what is required to evaluate whether a plaintiff has established a prima facie case in the traditional manner.
On a final note, this evidentiary defect need not be fatal to the plaintiff's prima facie case if she could marshal any other evidence, in any form, that could support an inference of discrimination. She has not and, on this record, cannot. As the remainder of the plaintiff's arguments are devoted to pretext, the court will address those as well.
Even presuming that the plaintiff has established a prima facie case, whether through a replacement theory or otherwise, she still cannot make out a genuine issue for trial because she cannot prove that the defendant's proffered reason for terminating her was pretextual. As previously stated, to prove pretext a plaintiff must submit evidence "that allows a fact finder to either 1) disbelieve or discredit the employer's justification; or 2) believe discrimination was more likely than not a `but for' cause of the adverse employment action." Abels v. DISH Network Serv., LLC, 507 F. App'x 179, 183 (3d Cir. 2012) (citations omitted). "The plaintiff's evidence, if it relates to the credibility of the employer's proffered justification, must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (internal quotation marks and citation omitted). "[I]f a plaintiff has come forward with sufficient evidence to allow a finder of fact to discredit the employer's proffered justification, she need not present additional evidence of discrimination beyond her prima facie case to survive summary judgment." Id. (citations omitted).
With that said, "[p]retext is not shown by evidence that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Ekhato v. Rite Aid Corp., 529 F. App'x 152, 155 (3d Cir. 2013) (internal quotation marks and citation omitted). "Evidence that the method of evaluation an employer used was not the best method does not amount to evidence that the method was so implausible, inconsistent, incoherent or contradictory that it must be a pretext for something else." Id. (footnote, internal quotation marks, and citation omitted).
To survive summary judgment in this case, the plaintiff must make an evidentiary showing that raises an inference that the true reason behind her termination was age discrimination, not a violation of company policy. The plaintiff tries to show pretext by arguing the following: (1) the defendant conducted a minimal investigation regarding her conduct; (2) the defendant exonerated her; (3) Ms. Titus never lodged a complaint against her; (4) she had a legitimate business reason for accessing Ms. Titus's account; (5) Ms. Titus authorized her actions at all times; (6) the defendant relied on an unwritten standard in terminating her; (7) the defendant gave inconsistent reasons for the termination; and (8) the defendant did not consider progressive discipline. Opp'n to Summ. J. at 18-21.
To see why all of these reasons fail to prove pretext because they add up to nothing more than an attack on the correctness of the defendant's employment decision, the court must discuss three of them separately—the rest speak for themselves. One of the reasons given is that the defendant exonerated the plaintiff. As previously discussed, however, Mr. Reeser determined only that the plaintiff did not engage in fraudulent conduct. The record evidence, as provided by the plaintiff herself, shows that the investigation was then turned over to another department to determine whether she had breached company policy. On the plaintiff's own version of the facts, it is simply inaccurate to equate total exoneration with a failure to perpetrate fraud. This inaccuracy, in turn, leads to a second reason given, namely that the defendant gave inconsistent reasons for the termination. Again, inconsistency arises only if one fails to distinguish between fraudulent activity and company policy.
In sum, while the plaintiff may have shown that the defendant's reason for her termination was incorrect or harsh, she has not produced any evidence suggesting that the defendant was not honestly motivated by it. In other words, the plaintiff has not raised an inference that the true reason behind her termination was a discriminatory one. Because the law is concerned with discriminatory results, not results that are merely incorrect or harsh, the plaintiff cannot make out a genuine issue for trial.
Summary judgment is to be applied with "added rigor in employment discrimination cases, where intent and credibility are crucial issues." Dellapenna v. Tredyffrin/Easttown Sch. Dist., 449 F. App'x 209, 212 (3d Cir. 2011) (internal quotation marks and citation omitted). But no amount of rigor can save a case that lacks a triable issue even if a jury were to credit the plaintiff's version of the facts. Confronted with the plaintiff's version in this matter, no reasonable jury could infer that the defendant had discriminated against her. And this is presuming that there is evidence supporting each part of the plaintiff's version in the first place. The court, therefore, is reluctantly compelled to grant the defendant's motion for summary judgment.
An appropriate order follows.
As a further safeguard to the plaintiff, the court also conducted an independent review of the record to ensure that the plaintiff's version of the facts indeed cast the record in the light most favorable to her. See Fed. R. Civ. P. 56(c)(3) (stating that a court "need consider only the cited materials, but it may consider other materials in the record.").
