                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2007

English v. PNC Bank
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3464




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Recommended Citation
"English v. PNC Bank" (2007). 2007 Decisions. Paper 1560.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1560


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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 04-3464


                                THERESA L. ENGLISH,
                                              Appellant

                                            v.

                       PNC BANK and PNC BANK CORP., et al.,
                                            Appellees


Appeal from the Judgment of the District Court for the Western District of Pennsylvania
                     (District Court Civil Action No. 99-194)
                        (District Judge: David S. Cercone)


                       Submitted Under Third Circuit LAR 34.1(a)
                                   February 2, 2007

       Before: BARRY, ROTH, Circuit Judges, and IRENAS,* Senior District Judge.

                               (Filed: February 28, 2007)


                                        OPINION



IRENAS, Senior United States District Judge.

        In this employment discrimination case, Appellant Theresa English appeals the



   *
   Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
District Court’s Order granting summary judgment to English’s former employer,

Appellee PNC Bank (“PNC”). Because we conclude that English failed to sustain her

burden of putting forth sufficient evidence from which a reasonable factfinder could find

that PNC’s proffered reason for her termination was pretextual, we will affirm.

                                            I.

      English was hired by PNC in 1967 at the age of 17. Over the course of her

employment, she advanced through various managerial positions, achieving the position

of Vice President and General Manager of Bank Card Accounting in 1997, at the age of

47. She was able to advance to that position, and earn favorable evaluations of her work,

despite having been diagnosed with depression and alcoholism in 1988. English was

responsible for the accounting systems for PNC’s credit and debit cards.

      In 1994, PNC offered a new credit card with an interest rate of 8.9% applied to

both purchases and cash advances. After receiving permission from her manager,

English opened a credit card account. Two years later, PNC increased the interest rate

for cash advances on the account to 21.5%, which English contends was an error. On

June 28, 1996, English accessed her own account and closed it. English explains that she

did so after her supervisor called her to a meeting to question her about how she came to

have the card. She states she closed the account because she did not need the additional

credit and thought it was the prudent decision until her supervisor had completed the




                                            2
inquiry into the situation.1

       In either June or July, 1996, English says she discovered that PNC had treated

some of her credit card transactions as cash transactions which carried the allegedly

erroneous 21.5% rate, instead of merchandise purchases to which the 8.9% rate applied.2

English attempted to resolve the problem by contacting the third party vendor who

serviced her account, but to no avail. Thus, in September, 1996, English directed her

subordinate employee to access English’s account, which remained closed at the time, to

transfer her cash advance balance to her purchases balance.3 English did not receive

permission to make the change to her account and does not dispute that the adjustment to

her account was not accomplished through the proper channels. Shortly after the

adjustment was made, English reopened her account.

       On January 29, 1997, each of the PNC employees who had used the 8.9% credit

accounts, including English, were asked to meet individually with their respective

supervisors to discuss the situation. In the meeting, English explained that she took the

actions on her account because she believed an error had occurred. She acknowledged

   1
     Approximately 11 other PNC employees obtained PNC credit cards with the 8.9%
rate. PNC questioned each of them about their accounts.
   2
     Notably, the undisputed record evidence demonstrates that English drafted checks to
purchase merchandise, then used her credit card account’s overdraft protection to cover
the checks when her checking account had an insufficient balance. (Supp. App. at 61-69).
The overdraft protection transactions were treated as cash advances, while English’s
purchases from retailers were treated as purchases. (Id.)
   3
    English’s October 6, 1996, credit card statement reflects an “adjustment” of
$4,631.71. (Supp. App. at 79)
                                             3
that she knew she had not followed the proper procedure for making the adjustment but

explained that she was too busy to pursue the proper course. English was immediately

placed on administrative leave. A few weeks later she was terminated.

       PNC asserts that English was terminated because she violated PNC’s Code of

Ethics which reads, in pertinent part,

       You owe PNB Bank and its clients undivided loyalty. You should not
       have an interest that conflicts with . . . PNC Bank or its clients. . . . A
       conflict of interest exists when: You engage in a personal activity or
       have a personal interest that may influence your decisions when acting
       for PNC or that may be at odds with PNC’s interests; or You use your
       position with PNC or use PNC’s confidential information to benefit
       yourself rather than PNC. . . .Some illustrations of areas where potential
       conflicts of interests could occur and PNC’s policies are: . . .You may
       not act on behalf of PNC in any transaction involving a family member
       of your immediate family or in any situation where you or a member of
       your immediate family has a personal or financial interest.

(App. at 534-536) English asserts that she was terminated because of her age and her

alleged disabilities based on depression and alcoholism.

       English’s Complaint asserted violations of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101-12213; the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et. seq.; and the Pennsylvania Human Relations Act

(“PHRA”), 43 P.S. §§ 951-963.4 The District Court granted PNC’s Motion for Summary

Judgment, holding that English failed to establish a prima facie case under the ADA,



   4
    The Complaint also asserted violations of ERISA, 29 U.S.C. § 1001 et. seq. and
Pennsylvania’s Wage Payment and Collection Law, 43 P.S. § 260.1 et. seq., but those
claims were dismissed pursuant to the parties’ stipulation.
                                             4
ADEA, or PHRA, and even if she had, she failed to put forth sufficient evidence

establishing that PNC’s reason for her termination was pretextual. We will affirm the

judgment of the District Court on the ground that English has failed to establish pretext.5

                                            II.

       Because we are reviewing a grant of summary judgment, our review is plenary.

Detz v. Greiner Indus., 346 F.3d 109, 114 (3d Cir. 2003). Drawing all reasonable

inferences in favor of the party against whom judgment is sought, judgment pursuant to

Federal Rule of Civil Procedure 56 should be granted only when no issues of material fact

exist and the party for whom judgment is entered is entitled to judgment as a matter of

law. Id. When “the plaintiff fails to make a showing sufficient to establish the existence

of an element essential to her case, and on which she will bear the burden of proof at

trial,” summary judgment for the defendant is warranted. Id. (internal quotations

omitted).

                                            III.

       In ADA, ADEA, and PHRA cases, once the employer puts forth a legitimate,

nondiscriminatory reason for an employee’s termination, the employee bears the burden

of proving that the employer’s reason is merely pretext for a discriminatory motive.

Kautz v. Met-Pro Corp., 412 F.3d 463, 466-67 (3d Cir. 2005); Shaner v. Synthes (USA),

204 F.3d 494, 501 (3d Cir. 2000). The employee must show “‘such weaknesses,


   5
    Accordingly, we express no opinion regarding the District Court’s alternative
holdings.
                                             5
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.’” Kautz, 412 F.3d at 67 (quoting Fuentes v. Perskie, 32

F.3d 759, 765 (3d Cir. 1994)); Shaner 204 F.3d at 501 (quoting Fuentes). She may

accomplish this by establishing facts from which a reasonable factfinder could conclude

that the employer’s reason “was either a post hoc fabrication or otherwise did not actually

motivate the employment action.” Kautz, 412 F.3d at 67.

       English has not put forth any evidence that PNC’s reason for her termination–

conducting transactions in her own account in violation of the company Code of Ethics–

was not the true reason for her termination. English first asserts that the Code of Ethics

does not specifically prohibit altering interest rates on accounts to correct errors, and

therefore there is a factual dispute as to whether English actually violated the Code of

Ethics. This argument fails because it is undisputed that English personally, and through

the actions of a subordinate whom she directed, conducted transactions in her own

account. The Code of Ethics prohibits employees from acting “on behalf of PNC in any

transaction . . . or in any situation where you . . . ha[ve] a personal or financial interest.”

English’s actions fit squarely within the description of a “conflict of interest,” as

described by the Code of Ethics.

       Second, English points to asserted inconsistencies in PNC’s discipline of

employees who conducted transactions in their own or family members’ accounts.

English asserts that her termination was disproportionately harsh because several other

                                               6
employees conducted similar transactions but were not terminated. Most notably,

English points to two other employees who were given written warnings for conducting

transactions in family members’ accounts. One branch manager instructed a subordinate

to remove fees from the manager’s husband’s checking account. Another branch

manager removed a “hold” from her son’s checking account. Both managers received

written warnings.

       This evidence alone is insufficient because, while it may cast doubt on the

proportionality of English’s punishment, it does not demonstrate that PNC had an illegal

motive. See Kautz, 412 F.3d at 467 (“pretext 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.”)(internal quotations omitted). The fact that PNC may

have chosen to treat employees differently for similar ethics violations cannot support a

reasonable inference that it acted with discriminatory animus.6 This conclusion is

bolstered by the fact that in the same year English was terminated, twenty other

employees were terminated for transacting business in their own accounts.7


   6
     Ethics violations involve inherently fact-specific inquiries and require the careful
exercise of judgment to an extent that renders any meaningful comparison of other
employees’ situations and punishments exceedingly difficult. Any apparent
inconsistencies are not so inherently suspicious as to support an inference of
discriminatory motive in this case.
   7
     English relies on the fact that seven of the twenty employees were over forty years
old to argue that PNC discriminates against employees over forty. This evidence is
                                              7
        English has failed to put forth sufficient evidence from which a reasonable

factfinder could conclude that PNC acted with discriminatory animus (i.e., on the basis of

either her age or her asserted disabilities) when it terminated her. The District Court

properly granted summary judgment to PNC. The judgment will be affirmed.




                                             8




insufficient to carry English’s summary judgment burden.
