Mangold v. Peco Energy

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DAVID G. MANGOLD, Plaintiff, v. PECO ENERGY, Defendant.

Civil Action No. 19-5912

United States District Court, E.D. Pennsylvania

December 23, 2021

MEMORANDUM OPINION

Goldberg, J.

In 2015, Defendant PECO Energy Company (“PECO”) implemented an initiative called the

Accelerated Workplace Diversification (“AWD”) program in an effort to increase the diversity of its workforce. Plaintiff David Mangold, a white male who worked for PECO, contends that, as a result of this program, he was discriminated against and constructively terminated from his position. He brings claims against Defendant pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act (“Title VII”), and the Pennsylvania Human Relations Act (“PHRA”).

Defendant seeks summary judgment on the entirety of Plaintiff's Complaint. For the following reasons, I will grant Defendant's Motion and enter summary judgment in favor of Defendant.

I. STATEMENT OF FACTS

Unless so indicated, the following facts are uncontested.^[1]

A. The Parties

PECO Energy Company (“PECO”) is an energy services company that constitutes Pennsylvania's largest electric and natural gas utility. It is an indirect subsidiary of Exelon Corporation (“Exelon”), an energy services company headquartered in Pennsylvania.

Plaintiff, a white male, worked as a Senior Business Analyst for PECO's Marketing Services department from November 24, 2014 to the date of his resignation on February 26, 2018. (Def.'s Ex. 1.) Prior to working as a PECO employee, Plaintiff was employed by Calico Energy, and then worked as a contingent worker/contractor for PECO from July 2013 until he became a full-time Senior Business Analyst. (Def.'s Ex. 2, Dep. of David Mangold (“Mangold Dep.”), Day One, 84:18-87:01.)

B. Other Individuals Employed by PECO

As this case centers on the interactions between Plaintiff and both his supervisors and members of Human Resources, some understanding of the other individuals involved is helpful.

1. Plaintiff s Supervisors

During his tenure at PECO, Plaintiff reported to or worked with several other individuals, including Paul Miles, a white male to whom he directly reported. (Id. at 124:16-24.) Plaintiff also received feedback from other peer managers including Vien Cash (Asian female) and Kathleen MacWilliams (white female). (Id. at 62:20-63:4.)

Mr. Miles reported to Sabrina Brooks (black female), who was the Senior Manager of the Marketing Department. (Def.'s Ex. 2, Mangold Dep., Day Two, 179:18-24; Def.'s Ex. 4, Dep. of Sabrina Brooks (“Brooks Dep.”), 12:8-20.) Aside from Mr. Miles, four other managers reported to Ms. Brooks: Michael O'Leary (white male), Liz Finocchio (white female), Kathleen MacWilliams (white female), and Vien Cash (Asian female). (Brooks Dep. 14:2-24.)

Ms. Brooks reported to Kathleen Lentini (white female), who was Director of Energy and Marketing Services. (Brooks Dep. 13:1-25; Def.'s Ex. 5, Dep. of Kathleen Lentini (“Lentini Dep.”) 19:4-7.) Five other managers reported to Ms. Lentini, including Sharon Simpson, Ramesh Santana Christian, Jim Reilly, Phil Eastman, and Nick DiDomenicus. (Lentini Dep. 19:16-19.)

Ms. Lentini reported to Anthony (Tony) Gay, a black male, who was the Vice President of External and Governmental Affairs. (Lentini Dep. 69:1-5; Def.'s Ex. 6, Dep. of Anthony Gay (“Gay Dep.”) 14:15-25.) Mr. Gay, in turn, reported to Elizabeth Murphy (white female) who was Senior Vice President of the Division. (Gay Dep. 13:2-12.)

To summarize the relevant chain of command:

Elizabeth Murphy (white female)

Tony Gay (black male)

Kathleen Lentini (white female)

Sabrina Brooks (black female)

Paul Miles (white male)

Plaintiff (white male)

2. Human Resources and Security Personnel

Mary Krick (white female) was the Vice President, Chief Human Resources Officer at PECO during the time period relevant to this case. (Def.'s Ex. 7, Dep. of Mary Krick (“Krick Dep.) 14:2215:1.) In that position, she reported directly to Amy Best (white female), Chief Human Resources Officer of Exelon. (Id. at 15:16:2.) Ms. Krick, in turn, reported to Christopher Smith (white male), the Human Resources Business Partner who supported Human Resources functions for External and Governmental Affairs. (Id. at 16:23-17:20.) Mr. Smith was hired at PECO in 2016 and promoted to Principal HR Business Partner in January 2020. (Def.'s Ex. 8, Dep. of Christopher Smith (“Smith Dep.”), 53:13-22.)

Michael Melvin (white male) served as Senior Manager of PECO Security. (Def.'s Ex. 9, Dep. of Michael Melvin (“Melvin Dep.”), 11:1-21.) In 2018, Mr. Melvin was promoted to Director, Security Programs and Compliance for Exelon Utilities, a subsidiary of Exelon Corporation. (Id.)

Thomas Marshall (white male) is currently employed as a Senior Manager of Corporate Security at PECO, a position to which he was promoted in 2018, as Mr. Melvin's replacement. (Def.'s Ex. 10, Dep. of Thomas Marshall (“Marshall Dep.”), 12:6-13:16.) He was originally hired as an investigator, then was promoted to security manager reporting to Mr. Melvin. (Id. at 13:8-23.) Lou DeShullo (white male) worked for Mr. Marshall in Corporate Security. (Id. at 94:18-95:23.)

C. PECO's Affirmative Action Programs

As a federal contractor, Exelon, Defendant's parent company, is required to take affirmative action to recruit and advance qualified minorities, women, persons with disabilities, and covered veterans. 30 F.R. 12319 (Sept. 24, 1965), as amended by Exec Order No. 11375, 32 F.R. 14303 (Oct. 13, 1967); (Def.'s Ex. 22.) Under Exelon's Federal Affirmative Action Plan (“FAAP”) agreements with the U.S. Department of Labor's Office of Federal Contract Compliance Programs, Exelon was required to examine and ensure that its personnel practices would allow equal employment opportunity for applicants. (Def.'s Ex. 23.) Neither Plaintiff's position nor any position within the External and Governmental Affairs division were listed as subject to an FAAP during the time that Plaintiff worked for Defendant. (Def.'s Ex. 24; Krick Dep. at 55:1-56:3.)

As part of its obligations, Exelon incorporated diversity and inclusion standards into its Exelon Code of Business Conduct (“COBC”). (Def.'s Exs. 25, 26, 28.) In 2015, Defendant determined that there were still critical gaps in the areas of hiring and retention of diverse employees and sought to implement a plan to increase the diversity of its workforce. (Def.'s Ex. 27.) In an original draft presentation of Defendant's plan, the Accelerated Workforce Diversification (“AWD”) Program, Defendant included one slide describing “[a]n aggressive scenario aiming to achieve 50% diversity within five years using the Nuclear business as an example.” (Def.'s Ex. 29, at p. 15.) This scenario “require[d] a significant swap of non-diverse employees with diverse employees on an annual basis for five years.” (Id.) It further noted that “[a] change of this magnitude would require additional actions to create space for 750 diverse new hires as the normal rate of attrition alone does not create sufficient opportunity.” (Id.)

According to Nicole Durham, the Vice President, Diversity & Inclusion for Defendant, Defendant “knew that this type of aggressive approach would not be practical or legal and [Defendant was] never planning to adopt it.” (Def.'s Ex. 28, ¶ 20.) Ms. Durham explained that this slide was designed “for illustrative purposes” and the final Executive presentation circulated on July 24, 2015 neither included this slide nor made any reference to changing current white male headcounts. (Id. ¶¶ 21, 23.) Indeed, Exelon ultimately adopted a more measured approach that “simply required intentional focus on creating a diverse slate of candidates, while remaining equitable and ensuring a competitive process.” (Id. ¶ 22.) More specifically, Defendant created a goal of achieving a seven percent increase in diverse headcount over five years by increasing the flow of diverse talent coming into the company, improving development and advancement strategies, and improving retention strategies. (Def.'s Ex. 27 at 3.) This goal was framed by the legal principle of “recruiting a pool of diverse candidates and hiring, promoting, and retaining the best qualified candidate without regard to race/gender.” (Id. at 4.)

On November 30, 2015, Chris Cane, the white male CEO of Exelon, issued the following message to all employees regarding the upcoming launch of Exelon's AWD initiative:

As you known Exelon's footprint extends across the nation, reaching a customer base that is rich in diversity. And, as a major service provider, we need to ensure that our organization represents the communities we serve. I believe that we have the opportunity to leverage our diversity beyond our bottom line. Employment within the Exelon family of companies enables individuals and families to build legacies of personal wealth and quality education for their children. This creates greater sustainability for our company and, importantly, allows us to change lives.

Our diverse workforce and inclusive leadership enable our business success. Though we have made some progress in improving our diversity and inclusion in recent years there is more work to be done. I am challenging every part of the organization to drive an increase in our diverse headcount of at least 7 percent enterprise-wide by the year 2020. We will begin measuring progress against this goal in January 2016. To make this goal, we must continue to attract diverse talent to Exelon, but also to retain it.

Meaningful progress will require dedicated support and continuous engagement by all executives and their leadership teams, in partnership with Human Resources. As you complete the 2015 performance assessment process within your organizations, pay close attention to each

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