Hileman v. Penelec/First Energy Corporation

REPLY BRIEF re MOTION for Summary Judgment

M.D. Pa.November 8, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROSALYN A. HILEMAN, : : Plaintiff : : NO. 1:14-CV-01771-CCC v. : : (Chief Judge Conner) PENELEC/FIRST ENERGY : CORPORATION, : : Defendants : DEFENDANTS’ REPLY BRIEF IN FURTHER SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Thomas G. Collins, Esquire Attorney I.D. 75896 Jacob M. Theis, Esquire Attorney I.D. 208631 Buchanan Ingersoll & Rooney, PC 409 North Second Street, Suite 500 Harrisburg, PA 17101 (717) 237-4800 e-mail: thomas.collins@bipc.com e-mail: jacob.theis@bipc.com Attorneys for Defendants Date: November 8, 2016 Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 1 of 27 i TABLE OF CONTENTS Page I. ARGUMENT .......................................................................................... 1 A. PLAINTIFF’S CSMF AND BRIEF FAIL TO CREATE GENUINE ISSUES OF MATERIAL FACT. .................. 4 1. Because Plaintiff’s CSMF and Brief both fail to sufficiently cite supportive factual authority— and because Judges are not “pigs hunting for truffles buried in the record”—the Court should grant summary judgment in Defendants’ favor for this reason alone. .......................................................................... 4 2. Plaintiff unequivocally admitted that she threw juice “at” Spencer, and that PEC believed she had thrown it “at” Spencer when it terminated Plaintiff—and Plaintiff’s vague statements in her CSMF on this point fail to create any genuine issue of material fact..................................................................... 6 3. The other facts contested by Plaintiff are legitimately undisputed, and the purported “evidence” cited by Plaintiff does not create a genuine issue of material fact. ............ 9 B. THE UNDERLYING THEME IN PLAINTIFF’S BRIEF FURTHER REVEALS THAT SUMMARY JUDGMENT IS APPROPRIATE. .................................................... 14 C. PLAINTIFF’S RELIANCE UPON CASE LAW REGARDING PRETEXT IN TITLE VII RETALIATION CLAIMS IS MISPLACED. ............................................................... 16 D. PLAINTIFF INCORRECTLY STATES THE LEGAL STANDARD UNDER NASSAR FOR RETALIATION CLAIMS. ............................................................... 17 Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 2 of 27 ii E. MERE LOGOS ON PAYCHECKS FAIL TO MEET PLAINTIFF’S BURDEN IN ESTABLISHING THAT FIRSTENERGY WAS HER EMPLOYER. ............................................................................ 18 II. CONCLUSION ....................................................................................... 20 Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 3 of 27 iii TABLE OF AUTHORITIES Page Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................. 7 Andre v. Bendix Corp., 841 F.2d 172 (7th Cir. 1988) ........................................ 3, 15 Burton v. Pennsylvania State Police, 990 F. Supp. 2d 478 (M.D. Pa. 2014), aff’d, 612 F. App’x 124 (3d Cir. 2015) .................................... 18 Carlson v. Township of Lower Alloways Creek, 452 F.App’x 95 (3d Cir. 2011) ... 13 Chavarriaga v. New Jersey Dep’t of Corr., 806 F.3d 210 (3d Cir. 2015) ................ 9 Hobgood v. Illinois Gaming Bd., 731 F.3d 635 (7th Cir. 2013) .............................. 17 Houston v. Dialysis Clinic, Inc., 2015 WL 3935104 (D.N.J. June 26, 2015) ......... 13 In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litig., 683 F.3d 462 (3d Cir. 2012) ................................................................................. 19 Marra v. Philadelphia Hous. Auth., 497 F.3d 286 (3d Cir. 2007) .......................... 16 Morris v. Kesserling, No. 1:09-CV-1739, 2010 WL 4362630 (M.D. Pa. Oct. 27, 2010), aff’d sub nom. Morris v. Kesselring, 514 F. App’x 233 (3d Cir. 2013) ........................................................................4, 5 Mroczek v. Bethlehem Steel Corp., 126 F. Supp. 2d 379 (E.D. Pa. 2001) ......... 3, 15 Trap Rock Industries, Inc. v. Local 825, Int’l, 982 F.2d 884 (3d Cir. 1992) ..... 9, 10 United States v. Dentsply Int’l, Inc., No. 12-7199, 2016 WL 1403991 (E.D. Pa. Apr. 11, 2016) .....................................................................................4, 5 Univ. of Texas S.W. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013) .......................... 18 Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 4 of 27 iv Rules Fed.R.Civ.P. 56 .......................................................................................................... 1 Fed.R.Civ.P. 56(c) .................................................................................................... 11 Local Civil Rule 7.7 ................................................................................................... 1 Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 5 of 27 1 DEFENDANTS’ REPLY BRIEF IN FURTHER SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Under Fed.R.Civ.P. 56 and Local Civil Rule 7.7 and 56.1, Pennsylvania Electric Company (misidentified in the Complaint as “Penelec”) (hereinafter, “PEC”), and FirstEnergy Corp. (misidentified in the Complaint as “First Energy Corporation”) (hereinafter, “FirstEnergy”), submit this Reply Brief in further support of their Motion for Summary Judgment. I. ARGUMENT There is little factual dispute in this case with respect to the circumstances surrounding the five1 allegedly adverse actions complained of by Plaintiff. Accordingly, this case turns on whether Plaintiff has presented sufficient evidence to establish that PEC’s stated reasons for taking the five allegedly adverse actions are pretext for gender and race discrimination and/or retaliation—i.e., whether Plaintiff has sufficient circumstantial evidence to show that PEC’s intention behind the five allegedly adverse actions was unlawful discrimination based upon race, gender and/or retaliatory intent. As demonstrated in Defendants’ Statement of Undisputed Material Facts (Doc. 30) (“SMF”) and Brief in Support of Summary Judgment (Doc. 32), it is apparent that Plaintiff does not have any evidence that the 1 Although Plaintiff states that there are more than five allegedly adverse actions on page 9 of her Brief in Opposition (Doc 32), she does not explain on that page—or anywhere else—what other actions she claims as being adverse. Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 6 of 27 2 decisionmakers were motivated by Plaintiff’s gender, race, or by any retaliatory intent. (See SMF ¶¶ 142-144, see also 146-148, 150-158, and 162-166.) In response to the foregoing, Plaintiff’s Brief in Opposition (Doc. 36) (“Plaintiff’s Brief”), and Counter Statement of Material Facts (Doc. 37)(“CSMF”), present 97 pages of convoluted arguments based exclusively on her own subjective and highly speculative perspective, and which have no support in the factual record. Plaintiff’s arguments consist exclusively of “punch lines” with no substance or factual support. These punch lines, with no citation to the factual record, include the following: “Arguably, those white men did not like to be taken to task by a black woman” (CSMF ¶ 13); the five allegedly adverse actions are “illustrative of a corporate culture particularly favoring white males, and also white females” (CSMF ¶ 42); because PEC paid Spencer—who had worked at PEC longer than Plaintiff—the same as Plaintiff, it is “arguably evidence of a cooperative corporate culture disfavoring black females, and as such, would be a proper question for the jury” (CSMF ¶ 53); “Bolinger supported the position of a melodramatic white female when determining to place” Plaintiff in a new office location (CSMF ¶ 100). In sum, Plaintiff attempts to argue—or more accurately stated, speculates—that because five adverse actions were taken against her, and she was the only African American woman in the Huntingdon Facility, the motivation behind the adverse actions must have been race and gender Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 7 of 27 3 discrimination, and/or premised upon some retaliatory motive—wholly ignoring the legitimate business reasons set forth by PEC. Stated differently, Plaintiff attempts to rely exclusively upon the mere existence of allegedly adverse action to show discriminatory and/or retaliatory intent. Such conclusory allegations are not enough to survive summary judgment. Despite her repeated claims of “genuine issue of material fact,” Plaintiff’s arguments do not identify factual disputes but, rather, they merely attempt to take the undisputed factual circumstances surrounding the five allegedly adverse actions and spin them into a discriminatory light with no factual support. In other words, Plaintiff argues that, with respect to each of the five allegedly adverse actions, “it must be because Plaintiff is Black, or female, or because she complained,” with no additional factual support. In this regard, again, Plaintiff’s subjective (and speculative) opinion cannot survive summary judgment. Mroczek v. Bethlehem Steel Corp., 126 F. Supp. 2d 379, 390 (E.D. Pa. 2001) (stating that “A plaintiff’s belief alone…is not enough to meet [her] burden of proof” to show pretext.); Andre v. Bendix Corp., 841 F.2d 172 (7th Cir. 1988) (holding that plaintiff’s mere perception that employer acted discriminatorily is not sufficient and citing the need to show employer’s discriminatory intent or disparate treatment of others.) Because it is not possible to address each and every alleged “genuine issue of Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 8 of 27 4 material fact” claimed by Plaintiff, Defendants address only a few of the relevant misstatements of fact and law herein. A. PLAINTIFF’S CSMF AND BRIEF FAIL TO CREATE GENUINE ISSUES OF MATERIAL FACT. 1. Because Plaintiff’s CSMF and Brief both fail to sufficiently cite supportive factual authority—and because Judges are not “pigs hunting for truffles buried in the record”—the Court should grant summary judgment in Defendants’ favor for this reason alone. “A party asserting that a particular 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 or presence of a genuine dispute, ….” United States v. Dentsply Int’l, Inc., No. 12-7199, 2016 WL 1403991, at *1 (E.D. Pa. Apr. 11, 2016)2 (collecting sources) (emphasis added). “It is not the responsibility of the court to comb the record in search of disputed facts.” Id. The Third Circuit Court of Appeals has repeatedly emphasized this point, stating that “[j]udges are not like pigs, hunting for truffles buried in the record.” Morris v. Kesserling, No. 1:09-CV-1739, 2010 WL 4362630, at *2 (M.D. Pa. Oct. 27, 2010), aff’d sub nom. Morris v. Kesselring, 514 F. App’x 233 (3d Cir. 2013). Plaintiff’s CSMF and Brief both fail to include specific citations to the record which would purportedly establish a genuine issue of material fact. By way 2 All unreported cases cited herein are attached here at Exhibit “A.” Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 9 of 27 5 of example, in Paragraph 5 of her CSMF, Plaintiff cites generally, “See supporting excerpts from depositions marked collectively as Exhibit ‘B.’” But Plaintiff’s Exhibit “B” is 21 non-consecutive pages of transcripts from Plaintiff, Wray, and Spencer’s depositions, with no indication of which portion thereof supports Plaintiff’s denial of Defendants’ corresponding statement of fact. In this regard, Plaintiff apparently expects this Court to review all 21 pages of Exhibit “B” and deduce which portions, paragraphs, and/or sentences purportedly dispute Defendants’ statement of fact in Paragraph 5 of the SMF, and/or guess which inferences should be taken therefrom.3 This method of citation to large swaths of deposition transcripts and exhibits appears throughout the entirety of Plaintiff’s CSMF. (See all citations in Plaintiff’s CSMF, Doc. 37.) Based on Plaintiff’s failure to provide any pincites in both her CSMF and in her Brief (but, rather, only vague references to large collections of pages from various deposition transcripts and unorganized collections of exhibits), she has failed to “cit[e] to particular parts of materials in the record or … show that the materials cited do not establish the absence or presence of a genuine dispute….” Dentsply Int’l, Inc., No. 12-7199, at *1. In this regard, Plaintiff’s CSMF and Brief require this Court to “hunt for truffles buried in the record.” Kesserling, No. 1:09- CV-1739, at *2. For this reason alone, the Court should find that the statements of 3 Counsel for Defendants have reviewed all 21 pages of Exhibit “B” and it is not clear what testimony therein allegedly supports Plaintiff’s partial denial. Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 10 of 27 6 fact set forth in Defendants’ SMF are undisputed, and grant Defendants’ Motion for Summary Judgment in its entirety. 2. Plaintiff unequivocally admitted that she threw juice “at” Spencer, and that PEC believed she had thrown it “at” Spencer when it terminated Plaintiff—and Plaintiff’s vague statements in her CSMF on this point fail to create any genuine issue of material fact. A central issue in this matter is whether Plaintiff was terminated for throwing juice at Spencer (as claimed by Defendants), or if she was actually terminated based upon her race and/or gender and/or in retaliation for engaging in protected activity (as claimed by Plaintiff). In this regard, Plaintiff tries mightily to create a genuine issue of material fact as to whether she threw juice at Spencer, or at the ground. Specifically, at Paragraph 63 of her CSMF, she denies the statement “[Plaintiff] threw her cup of juice all over Spencer” by arguing that “in retrospect, she knew she had not thrown the juice directly at Spencer, but rather had thrown the cup on the floor in frustration and juice splattered up onto Spencer.” (See SMF ¶ 63, and CSMF ¶ 63)(emphasis added.) In support of her position, Plaintiff cites to her Exhibit “Z,” which contains excerpts from several depositions and some poor-quality photos of liquid on a desk and the floor. Respectfully, these deposition excerpts and photos do not create a genuine issue of fact when compared to the evidence relied upon by Defendants—i.e., Plaintiff’s own handwritten admission that she threw the juice “at” Spencer. (Doc. 31, Defs’ Appendix, Exhibit J, at PEC0499.) Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 11 of 27 7 Rather, the excerpt from Plaintiff’s deposition states, in response to the question “You don’t recall if you threw it at Robbie?”, “I don’t recall.” (Exhibit “Z” to Pl.’s CSMF, ECF pg 5 of 15)(emphasis added.) Likewise, the two pictures within Plaintiff’s Exhibit “Z” are in no way indicative of whether she threw juice at Spencer, or at the floor. (See id.) In this regard, the Court is left weighing Plaintiff’s lack of present recollection (i.e., that she can’t remember if she threw the juice at Spencer, or at the floor), against the mountain of evidence establishing that Plaintiff did throw the juice “at” Spencer—i.e., the written statements of Plaintiff herself, Wray, Spencer, along with the deposition testimony of Spencer (all first-person witnesses who said they saw her throw the juice at Spencer, and who were standing within feet of Plaintiff when she threw the juice). (SMF ¶ 63; all of whom stated that they saw Plaintiff walk back towards Spencer and throw the juice “at” her). A factual dispute is only 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). Respectfully, Plaintiff’s lack of recollection— against the vivid recollection of three first-person witnesses and no other evidence—does not permit a jury to return a verdict for Plaintiff on the juice- throwing issue, and Plaintiff’s attempt to create a genuine issue of material fact as Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 12 of 27 8 to whether she threw the juice “at” Spencer—and/or whether PEC believed she threw it “at” Spencer—necessarily fails. More importantly, Plaintiff has presented absolutely no evidence to dispute the fact that PEC genuinely believed Plaintiff threw the juice “at” Spencer, and that PEC terminated her employment for that exclusive reason. In this regard, Defendants’ SMF ¶ 75 recites from the termination letter the reason for Plaintiff’s termination—“You have admitted, and three witnesses have confirmed, that in a moment of anger you threw a cup of juice in your co-worker’s face … There is no dispute about what transpired that day….” It is critical to note here that Plaintiff admitted to throwing juice “at” Spencer in her own written statement prepared immediately following the incident. (SMF ¶ 63, citing Ex. “J” at PEC0499) (stating, in her own handwriting, “I threw it at Robbie.”) In response to Defendants’ statement of fact, however, Plaintiff admitted that the foregoing text is an accurate quote of the termination letter, but then states, “However, it is denied that ‘no dispute’ existed about what transpired on the day in question. …” and then fails to cite any evidence showing that there is in fact a dispute about whether PEC believed that Plaintiff threw the juice “at” Spencer when it terminated her employment. (See CSMF ¶ 75) (which only cites Defs’ Exhibit “T” for purposes of establishing that Plaintiff’s termination preceded the criminal charges—the relevancy of which is not clear to Defendants.) After all, it is only PEC’s state of Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 13 of 27 9 mind (i.e., the state of mind of the decisionmakers) that is relevant in determining whether there was discriminatory or retaliatory intent—and the Court’s focus must be on evidence showing PEC’s intent at the time of termination, not what Plaintiff now argues after termination in a self-serving manner. Again, there is no factual dispute that Plaintiff threw the juice “at” Spencer (given that Plaintiff’s only evidence is that she now “doesn’t recall”), and more importantly, there is certainly no dispute that PEC believed she threw the juice “at” Spencer at the time it decided to terminate Plaintiff’s employment. 3. The other facts contested by Plaintiff are legitimately undisputed, and the purported “evidence” cited by Plaintiff does not create a genuine issue of material fact. Once the moving party has carried its burden under Rule 56, its opponent “must do more than simply show that there is some metaphysical doubt as to the material facts” in question. Chavarriaga v. New Jersey Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015). This means that the party opposing summary judgment “may not rest upon mere allegations, general denials, or vague statements.” See, e.g., Trap Rock Industries, Inc. v. Local 825, Int’l, 982 F.2d 884, 890 (3d Cir. 1992) (emphasis added). As but a few examples, the following show that Plaintiff’s CSMF does nothing more than make “mere allegations, general denials and vague statements” Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 14 of 27 10 and cannot raise a genuine issue of material fact sufficient to withstand summary judgment: Example No. 1: CSMF ¶ 11. “Denied as stated. Although Defendants’ contention that certain named individuals [i.e., the decisionmakers] were the only individuals involved in the decision to terminate Plaintiff … Plaintiff has no knowledge as to the veracity of this statement and Defendants have produced no direct evidence supporting the same. …[Citing to Pl.’s Exhibit “G”].” (emphasis added). In denying that James Cole, Scott Wyman, and to a very limited extent, Clair Ciaverella, Randy Parson and Tom Bolinger were the decisionmakers behind Plaintiff’s termination, she relies exclusively upon her own lack of knowledge. Simply put, Plaintiff attempts to create a genuine issue of material fact by stating that she “doesn’t know if it’s true or not.” This sort of response utterly fails to create a genuine issue of material fact as a matter of law, and falls squarely into the category of “general denial.” Trap Rock Industries, Inc. 982 F.2d at 890. Plaintiff’s citation to her own Exhibit “G” likewise fails—because it is the same exact arbitration transcript pages that Defendants used to establish the identity of the decisionmakers, and Plaintiff’s citation thereof does nothing to create any doubt as to who the decisionmakers were. (SMF ¶ 11, citing the sworn testimony of James Cole, in the Arbitration Transcript at 106:6-107:8, wherein he identified the decisionmakers for Plaintiff’s termination) (see also, Arb. Transcript at 102:2- 21, et seq.—introduction and swearing-in of James Cole.) Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 15 of 27 11 Example No. 2: CSMF ¶ 15-16. “Denied as stated. These statements merely parrot Bolinger and Parson’s explanation [in their deposition] of their versions of proper billing procedure. No independent corroborating evidence of these explanations has been produced by Defendants, nor was it ever clear if there was a profit motive behind the distinction. [No citation to evidence.] As with the first example above, Plaintiff denies Paragraphs 15-16 with a general denial, claiming that the facts therein must be genuinely in dispute because Defendants have failed to provide “independent corroborating evidence” and/or that it was never “clear if there was a profit motive behind the distinction.” Again, Plaintiff fails to comprehend that, as the Plaintiff, she bears the burden of production to bring forth evidence in support of her claim and, with respect to summary judgment, that she must point to evidence which creates a genuine issue of material fact.4 See Fed.R.Civ.P. 56(c). It is also worth noting here that Defendants’ billing practices have nothing to do with Plaintiff’s race, gender or any protected activity. Example No. 3: CSMF ¶ 105. “Denied as stated. … In fact, [Gary] Hileman specifically highlighted that co-workers were talking amongst 4 See also, by way of further example, Plaintiff’s confusing argument on page 19 of her Brief (Doc. 36), wherein she argues that “After providing thousands of pages of employment documents, Defendants failed to provide evidence of comparators” and that “the lack of evidence of comparators is proof … regarding the existence of pretext.” To the contrary, evidence of comparators was discovered, as identified by Plaintiff herself—but each comparator failed to support Plaintiff’s argument of race and gender bias, and/or retaliatory intent, and with respect to Spencer and the pay-rate issue, demonstrated that employees outside of Plaintiff’s protected class were being treated the same (thus dispelling any perception of discrimination). (See SMF ¶¶ 146- 166, and Defs’ Brief at pgs 12 et seq. and 33 et seq.) Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 16 of 27 12 themselves about Plaintiff’s placement upon her return to work as putting ‘the black in the back.’” … Plaintiff again fails to point to evidence establishing that her post- reinstatement workspace was any different from Wray’s (Caucasian woman) and/or Bolinger’s (Caucasian man) workspace. Instead, Plaintiff states in her response to Paragraph 105 that her brother-in-law said he heard co-workers—not the decisionmakers in this case—refer to Plaintiff’s new workspace as “putting the black in the back.” Respectfully, this unidentified hearsay statement has never been connected to anyone in management (nor any of the decisionmakers), and is wildly inaccurate for at least two reasons: (1) Sally Simmons (African American woman who had no knowledge of Plaintiff’s prior PHRC and/or HR complaints at that time) was one of the decisionmakers who decided to put Plaintiff in her new workspace, and (2) Plaintiff’s new workspace was between Wray (Caucasian woman) and Bolinger (Caucasian man) (SMF ¶¶ 94-119.) Even if the “black in the back” comment was somehow tied to the decisionmakers (which it was not), the undisputed facts of record establish that the only accurate way to make this statement would be to say “black-and-two-whites-in-the-back”—which obviously loses the racist ting asserted by Plaintiff here. Moreover, because Plaintiff has failed to identify any evidence showing who made the alleged “black-in-the-back” comment, it is undeniably hearsay evidence, which she cannot rely upon to withstand summary judgment (as outlined in Defs’ Brief, Doc. 32, pgs 18-19). Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 17 of 27 13 Example No. 4: CSMF ¶ 53. “Denied as stated. Plaintiff’s decision not to pursue Complaints through the PHRC or EEOC does not mean she did not pursue her claims, through HR and the Union. The lack of Union cooperation regarding the pay upgrade to which Plaintiff was entitled and Spencer’s undeserved rate of pay higher than her skill level can arguably be evidence of a cooperative corporate culture disfavoring black females, and as such, would be a proper question for the jury. …” Plaintiff misses entirely the point of Paragraph 53—which Defendants included for the purposes of showing that Plaintiff’s claims based upon her February 2010 Internal HR Complaint and 2008 PHRC Complaint are barred by the applicable statute of limitations. Accordingly, her general denial is of no consequence—because she simply cannot deny the math showing that, because she never filed suit on her 2008 PHRC charge and never filed a PHRC charge for the remaining issues in her February 2010 Internal HR Complaint, her claims are now time-barred (See Defs’ Brief, Doc. 32, pg 5, F.N. 1.) In this regard, although the 2008 PHRC Charge and 2010 Internal HR Complaint can still constitute protected activity under Plaintiff’s retaliation claim, the temporal proximity between them and the five purported adverse employment actions fails to establish pretext sufficient to survive summary judgment. See Houston v. Dialysis Clinic, Inc., 2015 WL 3935104, at *11 (D.N.J. June 26, 2015); Carlson v. Township of Lower Alloways Creek, 452 F.App’x 95, 101–02 (3d Cir. 2011) (both holding that temporal proximity alone is not sufficient to establish pretext and to defeat summary judgment). Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 18 of 27 14 Respectfully, Plaintiff’s responses in the foregoing examples are demonstrative of how she answered nearly all of Defendants’ SMF (i.e., vague and general denials without support), and also show how she fails to understand that, in order to successfully oppose summary judgment, she must “cit[e] to particular parts of materials in the record….” For these reasons, Plaintiff’s CSMF and Brief fail to create issues of material fact sufficient to withstand summary judgment, and this Court should grant summary judgment in Defendants’ favor. B. THE UNDERLYING THEME IN PLAINTIFF’S BRIEF FURTHER REVEALS THAT SUMMARY JUDGMENT IS APPROPRIATE. Plaintiff makes several arguments indicating that her claims against Defendants are premised not on race, gender or retaliatory intent, but on nothing more than her own subjective disappointment with how PEC handled the five allegedly adverse actions. Specifically, Plaintiff alleges that Bolinger “bought into Spencer’s Histrionic nonsense” (Pl.’s Brief pg 27), that “Plaintiff’s feelings were dismissed utterly” (pg 28), that “management was at the very least inept and simply tried to deal with Plaintiff based on appearances, rather than in a substantive, thoughtful manner” (pg 39), and that this case shows an overall “lack of control and management from a human resources perspective… [and] lack of coordination” (pg 41). These arguments—peppered consistently throughout Plaintiff’s Brief—are indicative of why Plaintiff feels discriminated against: she believes that she should have been treated better; that her feelings were hurt and Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 19 of 27 15 she believes Defendants were disorganized and inept according to her standards. Although Defendants disagree with her assessment, the point here is that these arguments—when paired with Plaintiff’s complete and utter lack of evidence suggesting or inferring race and/or gender discrimination or retaliatory intent— confirm that this matter is premised exclusively upon Plaintiff’s own subjective belief that she was discriminated against. Consequently, Plaintiff’s claims simply cannot survive summary judgment. Mroczek, 126 F. Supp. 2d at 390 (stating that “A plaintiff’s belief alone…is not enough to meet [her] burden of proof” to show pretext.); Andre, 841 F.2d 172 (holding that plaintiff’s mere perception that employer acted discriminatorily is not sufficient and citing the need to show employer’s discriminatory intent or disparate treatment of others.) Plaintiff also argues that Simmons was “conveniently brought to the Region” to essentially cover-up for PEC’s allegedly racist and sexist actions against Plaintiff. (See Pl.’s Brief, pgs 12 at FN 5, and 38-39.) Simmons—who had supervisory authority over both Bolinger and Parson (SMF ¶¶ 7-8, 12, 87, 101)— agreed with and, in fact, directed Bolinger and Parson to take the allegedly post- reinstatement adverse actions (which shows a lack of racial or gender bias as to those actions). When faced with this fact, Plaintiff dismisses Simmons’ race and gender, and despicably asserts that Simmons was being used by PEC as a mere puppet—all the while failing to identify any evidence that even remotely suggests Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 20 of 27 16 that Simmons’ supervision/involvement was a sham. These empty accusations further demonstrate Plaintiff’s lack of evidence, and the desperate and failing nature of her case. C. PLAINTIFF’S RELIANCE UPON CASE LAW REGARDING PRETEXT IN TITLE VII RETALIATION CLAIMS IS MISPLACED. On pages 39 et seq. of her Brief, Plaintiff cites several cases and argues that she is able to establish pretext as to her retaliation claim because she has shown a “pattern” of “antagonistic conduct,” and/or because she has established a “mosaic of circumstantial evidence.” Each argument here is taken in turn. First, there is no “pattern of antagonistic conduct” in this matter. In Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (relied upon by Plaintiff), the court required “actual antagonistic conduct or animus against the employee” in addition to temporal proximity for purposes of establishing pretext. The facts discussed in Marra, however, were proven to the jury at trial (thus making them undisputed for purposes of the court’s appellate analysis in Marra). In stark contrast, Plaintiff has no such undisputed incidents of antagonism here. To the contrary, as discussed above, Plaintiff’s evidence (or lack thereof) fails to establish that any of the five allegedly adverse actions were in fact “antagonistic” or indicative of “animus.” To the contrary, the record evidence establishes that each of the five allegedly adverse actions were based upon legitimate business reasons (and were not at all “antagonistic” in nature). Again, Marra is not helpful Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 21 of 27 17 to Plaintiff because, inter alia, a jury had determined the genuine disputes of fact in Plaintiff’s favor, permitting the court to simply confirm sufficient evidence in its appellate analysis. Second, the holding in Hobgood v. Illinois Gaming Bd., 731 F.3d 635, 643 (7th Cir. 2013) is no more helpful to Plaintiff than Marra. In Hobgood, the Seventh Circuit held that a plaintiff may present “direct evidence” of discrimination (thereby avoiding the three-step burden-shifting analysis under McDonnell Douglas) by “using what the [Seventh Circuit] has termed a ‘convincing mosaic’ of circumstantial evidence.” Id. at 643. This “convincing mosaic” method of proof, however, has never been adopted in the Third Circuit and, thus, cannot be relied upon by Plaintiff here. (Counsel for Defendants have found no Third Circuit cases discussing or adopting this “direct evidence” method.) Moreover, Plaintiff misquotes Hobgood’s assessment of Nassar on page 43 of her Brief—as the Seventh Circuit never stated that “but-for causation does not mean that retaliation must be the sole factor …” (Pl.’s Brief, pg 43.) Plaintiff’s arguments here fail to establish pretext for purposes of her retaliation claim. D. PLAINTIFF INCORRECTLY STATES THE LEGAL STANDARD UNDER NASSAR FOR RETALIATION CLAIMS. On page 7 of her Brief, Plaintiff makes the following statement: Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 22 of 27 18 Even pursuant to the decision in Univ. of Texas S.W. Med. Ctr. v. Nassar, 570 U.S. (2013)(“Nassar”), “but for” “causation in a retaliation claim does not mean that an unlawful motive must be the sole cause of the retaliation in order to survive summary judgment. (Doc. 36, pg 7 (or pg 13 of 57 on ECF))(emphasis and errors in original.) Counsel for Defendants have searched the Nassar decision, and this purported quotation cannot be found therein, which is perhaps why Plaintiff did not provide a pincite/page number in her citation. To the contrary of this purported quote, Judge Rambo of this very Court held, in analyzing Nassar, that “this [but-for retaliation standard under Nassar] is a stricter causation standard than that required for discrimination claims …[and requires that it be] … the but-for or sole cause.” Burton v. Pennsylvania State Police, 990 F. Supp. 2d 478, 509 (M.D. Pa. 2014), aff’d, 612 F. App’x 124 (3d Cir. 2015) (analyzing the “but for” standard under the prima facie case—which is now the same causation standard at the pretext stage of the three-step burden shifting analysis after Nassar) (emphasis added). Plaintiff’s quotation is incorrect, and Nassar does in fact require Plaintiff to meet the heightened “but-for or sole” causation standard. E. MERE LOGOS ON PAYCHECKS FAIL TO MEET PLAINTIFF’S BURDEN IN ESTABLISHING THAT FIRSTENERGY WAS HER EMPLOYER. In a last-ditch effort to keep FirstEnergy involved in this matter, Plaintiff points to the “FirstEnergy” logos on various documents, and argues that, because certain HR employees are employed by “FirstEnergy” (not PEC, like Plaintiff), Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 23 of 27 19 FirstEnergy and PEC must be “Joint Employers.” Without repeating the arguments previously made by Defendants in their Brief in Support (Doc 32), a similar case—with more plaintiff-favorable facts than those in the instant matter— shows why Plaintiff’s arguments still fail, and this Court should find that FirstEnergy is not a proper defendant in this matter (to the extent this Court does not find summary judgment appropriate for all claims). In In re Enterprise Rent-A- Car Wage & Hour Employment Practices Litig., 683 F.3d 462 (3d Cir. 2012), the court affirmed summary judgment to Defendant Enterprise Holdings, Inc., on the issue of joint employment based upon the following facts (which facts are far more plaintiff-favorable than those presented by Plaintiff Hileman here): Enterprise Holdings, Inc. directly and indirectly, supplies administrative services and support to each subsidiary. These services include, but are not limited to, business guidelines, employee benefit plans, rental reservation tools, a central customer contact service, insurance, technology, and legal services. The business guidelines provided by Enterprise Holdings, Inc. to its subsidiaries are, in turn, distributed to the subsidiaries’ employees in a manual which states that “[i]nformation contained in [this manual] refers to employees of: [t]he Crawford Group, Inc., Enterprise Rent–A–Car Company and their various operating subsidiaries.” … Enterprise Holdings, Inc. has a human resources department, which provides certain services to subsidiaries, …. Id., 683 F.3d 462, 466 et seq. (affirming summary judgment in favor of defendant on joint employment issue—that Enterprise Holdings, Inc. was not plaintiff’s employer.) Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 24 of 27 20 Respectfully, if the facts presented in the foregoing decision—in which the plaintiff had developed significant factual record (unlike Plaintiff Hileman here)— are insufficient to establish joint employment as a matter of law, then likewise, the arguments advanced by Plaintiff Hileman (“FirstEnergy” logos on paychecks and other documents, and FirstEnergy’s HR employees providing services to PEC) must also fail as a matter of law, and this Court should grant summary judgment in favor of FirstEnergy, because it was never Plaintiff’s employer. II. CONCLUSION For the foregoing reasons, Defendants request that this Honorable Court grant summary judgment in its favor, and against Plaintiff. BUCHANAN INGERSOLL & ROONEY PC By: s/ Thomas G. Collins Thomas G. Collins, Esquire Attorney I.D. 75896 Jacob M. Theis, Esquire Attorney I.D. 208631 Buchanan Ingersoll & Rooney, PC 409 North Second Street, Suite 500 Harrisburg, PA 17101 (717) 237-4800 e-mail: thomas.collins@bipc.com e-mail: jacob.theis@bipc.com Attorneys for Defendants DATE: November 8, 2016 Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 25 of 27 CERTIFICATE OF COMPLIANCE PURSUANT TO LOCAL RULE 7.8(b)(2) Pursuant to Local Rule 7.8(b), it is hereby certified that the foregoing Brief In Support of Defendants’ Motion for Summary Judgment is 20 pages in length and does not exceed 4,843 words (exclusive of the tables of contents and citations, and this certificate). s/ Jacob M. Theis Jacob M. Theis, Esq. Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 26 of 27 CERTIFICATE OF SERVICE I certify that a copy of Defendants’ Reply Brief was transmitted to the Court electronically and electronically served upon the persons indicated below: Roberta Binder Heath, Esquire Law Offices of Roberta Binder Heath, LLC 419 14th Street, Suite 211 Huntingdon, PA 16652 BUCHANAN INGERSOLL & ROONEY PC By: s/ Cynthia L. Ziegler Cynthia L. Ziegler Secretary to Thomas G. Collins, Esquire and Jacob M. Theis, Esquire Date: November 8, 2016 Case 1:14-cv-01771-CCC Document 40 Filed 11/08/16 Page 27 of 27 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 1 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 2 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 3 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 4 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 5 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 6 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 7 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 8 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 9 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 10 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 11 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 12 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 13 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 14 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 15 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 16 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 17 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 18 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 19 of 20 Case 1:14-cv-01771-CCC Document 40-1 Filed 11/08/16 Page 20 of 20