Yoho v. Bank of N.Y. Mellon Corp.

KEITH YOHO, Plaintiff, v. THE BANK OF NEW YORK MELLON CORPORATION, et al., Defendants.

2:17-cv-917-NR

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

December 14, 2020

OPINION

Defendants BNY Mellon Corporation, MSBC Securities Corporation, and the Dreyfus Corporation¹ move for summary judgment on Plaintiff Keith Yoho's employment-discrimination and related tort claims. ECF 82. After careful consideration, the Court will grant Defendants' motion, and enter judgment in favor of Defendants on all claims.

BACKGROUND

Considering the evidence here in Mr. Yoho's favor, Mr. Yoho was a "Senior Wholesaler" for BNY from February 28, 2005 until his termination on September 7, 2016. ECF 84, ¶ 1; ECF 91, ¶ 1. There is no dispute that he excelled in that role. Indeed, throughout his tenure, Mr. Yoho was routinely one of BNY's top-performing wholesalers. ECF 78, ¶ 7; ECF 86, ¶ 7.

In early September 2016, Mr. Yoho was terminated by BNY after an investigation into several allegations of misconduct toward female employees at sales conferences in Chicago and San Diego that occurred just a few weeks earlier, in mid-August 2016. The allegations included: (1) that Mr. Yoho told another employee, Christine Noland, that her "fat ass" gave him "such a hard-on" while they were standing together at a hotel bar (ECF 84, ¶ 14; ECF 91, ¶ 14); (2) that Mr. Yoho calledthe hotel room of a junior employee, Britney Curtin, late at night (ECF 84, ¶¶ 15-16; ECF 91, ¶¶ 15-16); (3) that Mr. Yoho drunkenly told another female employee, Audrey Seybert, that she was "too old" to be his "perfect age to date" but nonetheless "look[ed] great" (ECF 84, ¶¶ 18-19; ECF 85-9, pp. 41:1-6; ECF 91, ¶¶ 18-19); and (4) that Mr. Yoho told another employee, Bria Gilbert, that she had a "sexy" Australian accent, and that a "great idea for a sales campaign" would be to use her picture in an email to his clients. ECF 84, ¶ 21; ECF 85-8, pp. 27:24-28:6; ECF 91, ¶ 21.²

For each of these incidents, Mr. Yoho offers a denial or explanation. The "hard-on" comment was "fabricated" by Ms. Noland, with whom he had a rocky and rivalrous relationship. ECF 91, ¶ 14. The "late-night phone call" to Ms. Curtin was to offer her leftover beer from his room, before he left the hotel with a friend, because Ms. Curtin had mentioned "want[ing] more beer" after "the [hotel] bar closed." ECF 85-3, p. 173:5-12. The comment about Ms. Seybert's age was an innocent reference to a "psychological study" regarding the perfect age for a romantic partner, and Mr. Yoho did not "recall saying that [he] wanted to date [Ms. Seybert] or [that] she was too old to date." Id. at pp. 126:25-127:6. Finally, the reference to Bria Gilbert's "sexy" Australian accent was actually a comment "about Margot Robbie, the [Australian] actress," to the effect "that [he] liked her accent," while the comment about using Ms. Gilbert's picture was "a compliment." Id. at pp. 188:24-189:5, 190:15-20.

Whatever the truth behind these allegations (and the Court credits Mr. Yoho's testimony) the story of how they came to BNY's attention is, in all material respects, undisputed. True or not, Christine Noland reported the "hard-on" comment to Ryland Pruett, Mr. Yoho's "second-level" supervisor. ECF 92-2, p. 155:11-22; ECF 85-7, p. 199:20-22. Mr. Pruett testified that Ms. Noland did so at the same hotel-bar eventwhere the incident occurred. ECF 92-2, pp. 155:11-22. The next morning, Ms. Noland spoke to Britney Curtin and learned about Mr. Yoho's phone call to her hotel room. ECF 85-7, pp. 213:11-214:15. Ms. Curtin didn't find the phone call inappropriate and didn't really want to report it, but Ms. Noland reported it to Mr. Pruett anyway. Id. at p. 233:2-13; ECF 85-10, pp. 45:9-46:13, 51:13-52:18. Soon after, Ms. Noland spoke to Ms. Seybert and Ms. Gilbert about Mr. Yoho, and they told her about the other incidents. ECF 85-7, pp. 288:20-289:21, 292:2-8. At Ms. Noland's request, Ms. Seybert and Ms. Gilbert met with Mr. Pruett, who listened to their complaints and then reported Mr. Yoho to BNY's Human Resources department. ECF 84, ¶ 22; ECF 91, ¶ 22.

After the incidents were reported to HR, HR dispatched an employee named Thomas Galante to investigate. ECF 84, ¶ 23; ECF 91, ¶ 23. He did so, interviewing Mr. Pruett, Ms. Noland, Ms. Curtin, Ms. Seybert, Ms. Gilbert, an employee named Nick Vanderlinden, and, finally, Mr. Yoho. ECF 84, ¶ 24; ECF 91, ¶ 24. He then reported to a group consisting of BNY's in-house attorneys, HR personnel, Mr. Pruett, and Mr. Pruett's supervisor, Joe Moran. ECF 85-4, pp. 172:9-16, 316:1-9, 332:1-5, 341:1-14. BNY asserts that it concluded Mr. Yoho had violated its "Code of Conduct" and "Sexual and Other Discriminatory Harassment Policy," and decided to terminate his employment. ECF 85-15, pp. 7:7-8:5, 56:1-20. As Mr. Yoho's supervisor, Mr. Pruett bore ultimate responsibility for the termination decision. ECF 79-4, p. 5; ECF 79-22, pp. 71:24-72:2. He delivered the news to Mr. Yoho by reading a statement prepared by HR over the phone. ECF 85-4, p. 318:19-319:10.

Mr. Yoho's view of all this, and the basis for his lawsuit, is that the whole investigation was a pretextual sham to fire him because he was an alcoholic (a disability under the ADA), or because BNY viewed him as too old to keep up with what he characterized as the fast-paced, alcohol-soaked lifestyle of wholesaling financial securities. He asserts that Ms. Noland fabricated the "hard-on" comment,and then encouraged the other employees to report (and either fabricate or exaggerate) minor incidents that did not warrant termination. Mr. Yoho argues that BNY used these false or exaggerated allegations as an excuse to rid itself of him for discriminatory reasons. Separately, he also presses several other claims (e.g., disability-accommodation, tortious-interference, and defamation claims) that arise from a set of different, discrete facts, which are discussed below.

LEGAL STANDARD

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). At summary judgment, the Court must ask whether the evidence presents "a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In making that decision, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

The summary-judgment stage "is essentially 'put up or shut up' time for the non-moving party," which "must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is warranted. Celotext Corp. v. Catrett, 477 U.S. 317, 324 (1986).

DISCUSSION & ANALYSIS

In his complaint, Mr. Yoho asserts claims for disability discrimination (Count 1), age discrimination (Count 2), hostile work environment (Count 3), sex or gender discrimination (Count 4), retaliation (Count 5), defamation (Count 6), tortious interference (Count 7), and corresponding violations of the Pennsylvania HumanRelations Act, or "PHRA" (Count 8). For the following reasons, there is insufficient evidence to support the essential elements of Mr. Yoho's claims, and BNY is therefore entitled to summary judgment.

I. Mr. Yoho has forfeited his retaliation claim and conceded his hostile work environment and gender discrimination claims.

Preliminarily, Mr. Yoho has either conceded or forfeited several of the claims pled in his complaint. First, Mr. Yoho concedes that summary judgment should be granted on his gender discrimination and hostile work environment claims. ECF 90, p. 20 n.15. The Court grants summary judgment on those claims based on that concession, and also because Mr. Yoho testified that he did not believe he was discriminated against based on his sex or gender. ECF 85-3, pp. 235:22-236:4.

Next, the Court finds that Mr. Yoho has forfeited his retaliation claim. As pled in the complaint, Mr. Yoho's retaliation claim asserts that BNY retaliated against him by (1) "direct[ing] those within its control, including [Mr. Yoho's direct supervisor] [Tim] McCormick and others, to stop speaking with Mr. Yoho and to shun him"; and (2) "intentionally interfered with long-term relationships that Mr. Yoho possessed in an effort to retaliate against him for raising legitimate concerns about [BNY's] dishonest and illegal treatment of him." ECF 1, ¶¶ 257, 259. BNY moved for summary judgment on the grounds that Mr. Yoho did not allege, or show, that he engaged in any protected activity or suffered any adverse employment action related to this post-termination conduct. ECF 83, pp. 16-17.

In response, Mr. Yoho does not defend his original retaliation theory. Instead, his briefing transforms it into an entirely new claim that BNY retaliated against him for calling BNY's Employee Assistance Program, purportedly to seek help for his alcoholism, shortly before he was fired. ECF 90, pp. 11-13. This is a completely different claim than the retaliation claim pled in count 5 of the complaint, and it's too late for Mr. Yoho to assert it now. See Bell v. City of Phila., 275 F. App'x 157, 160 (3dCir. 2008) ("A plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.") (cleaned up). Further, because Mr. Yoho makes no effort to defend or substantiate his original retaliation claim on summary judgment, the Court deems that claim to be forfeited and grants summary judgment in favor...