Carroll v. Guardant Health, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BILL CARROLL : CIVIL ACTION

:

v. : NO. 20-3183

:

GUARDANT HEALTH, INC. :

MEMORANDUM

KEARNEY, J. January 5, 2021

Employment discrimination arises in many forms. We today address discrimination

claims and evidence adduced by a fifty-seven-year-old sales executive fired by his employer

after weeks on the job. The employer now seeking judgment as a matter of law dismissing a

terminated employee’s discrimination claims must demonstrate no genuine issue of material fact.

We are often called upon to decide whether the employer’s stated reason for terminating the

employee is pretext, or a cover-up, for discrimination against the employee based on his age or

gender. We are not a super-personnel oversight department second-guessing an employer’s

decision. But we must refer credibility decisions on genuine issues of material fact to trial if we

find demonstrated inconsistencies in the employer’s practices which could suggest disparate

treatment of the former sales executive. We do so today as to the sales executive’s claim for

discrimination based on his age.

Our issue arises from a national medical testing employer with a uniform human

resources policy firing an at-will fifty-seven-year-old sales executive within weeks of recruiting

him. His performance over his first weeks played no role in his firing. The employer fired him

only because co-workers quoted him as asking, “what the f*** is Lesli’s problem?” and referring

to women co-workers as “gals” or “f***ing chicks.” The sales executive claims he never said

these words. He swears the male and female co-workers lied because they did not like him as the

new guy recruited and mentored by the employer’s influential chief medical director. The parties

do not tell us when he allegedly made these statements or when they reported these statements to

their supervisors. The sales executive’s male supervisor and others investigated the alleged

statements shortly after his colleagues exchanged text messages critical of the sales executive.

The supervisor shortly thereafter decided to fire him. The parties dispute whether the supervisor

made his decision without affording him an independent investigation, an opportunity to

specifically address the challenged remarks, or imposing less severe corrective action seemingly

consistent with discipline under the employer’s policy and past investigations of similarly

situated men for gender-based physical and verbal harassment directed at women.

Following discovery, the adduced evidence confirms the employer did not similarly fire

at least three younger males for their disputed physical and verbal harassment of female

employees. It instead investigated the contradicted charges, prepared internal memoranda, and

issued warnings or counseling consistent with its human resources policy. While true the

investigated younger males worked for different departments with different supervisors, the

employer required all employees be similarly subject to the same standards and training to ensure

a full, fair and proper investigation of gender-based harassment claims against co-workers.

The sales executive adduces genuine issues of material fact as to whether his former

employer discriminated against him on the basis of his age on a disparate treatment theory. The

sales executive otherwise does not offer genuine issues of material fact precluding summary

judgment as a matter of law dismissing his claims for: retaliation on the basis of his age;

discrimination or retaliation on the basis of his sex; breach of contract; fraudulent inducement;

defamation; and tortious interference with contractual relations.

I. Undisputed Facts1

Bill Carroll is a fifty-seven-year-old man experienced in biotechnology and

pharmaceutical sales.2 Mr. Carroll worked as a Senior Regional Sales Director, Northeast-

Midwest for Veracyte, Inc. in early 2019.3 Mr. Carroll earned between $350,000 to $400,000 in

Veracyte stock options by early 2019.

In spring 2019, Richard B. Lanman, Jr., M.D., Chief Medical Officer of Guardant Health,

Inc., contacted Mr. Carroll regarding a position at Guardant.4 Guardant, a precision oncology

company, developed a blood test to enable timely therapy selection for cancer patients.5

Dr. Lanman knew Mr. Carroll from their twenty-year friendship, including working together at

Veracyte, and Mr. Carroll considered Dr. Lanman a mentor.6

On Dr. Lanman’s recommendation, Mr. Carroll flew to Texas and interviewed for the

Regional Sales Director position at Guardant.7 Mr. Carroll interviewed with Steven Collora,

Vice President of United States Oncology Sales.8 Mr. Collora told Mr. Carroll he “[saw] the

company going a long way”; “he’s building a team that’s going to last”; and “we’re going to be

here for a while.”9 He also “sold [Mr. Carroll] on . . . the future of the company,” and told Mr.

Carroll “the company would be better with [him], and that’s why he wanted to get [him] in.”10

Mr. Carroll made clear to Guardant he would not leave Veracyte, including $350,000 to

$400,000 in existing stock options, to take a position with Guardant unless “they” assured him of

a long-term opportunity, and he told Danielle Usilton, National Sales Director, he wanted to be

“100 percent certain” he had a position at Guardant before resigning from Veracyte.11

Mr. Collora and Ms. Usilton led him to believe Guardant wanted him to be part of the company

“long-term” and help grow Guardant over the next decade.12 Mr. Carroll claims Guardant,

through Mr. Collora’s and Ms. Usilton’s comments during the interview process, fraudulently

induced him to leave his position at Veracyte to accept the Regional Sales Direction position at

Guardant.

Mr. Carroll signs Guardant’s Employee Handbook ten days before resigning from Veracyte.

In late May or early June 2019, Mr. Carroll reviewed Guardant’s Employee Handbook,

which included an employee acknowledgment section confirming, among other things:

• he received the Employee Handbook and is responsible for reading it and complying

with its policies;

• the Employee Handbook provides “guidelines only and are not intended to create any

contractual rights or obligations, express or implied . . .”;

• his “employment with [Guardant] is at-will and not guaranteed for a specified length of

time and can be terminated at any time, for any reason or for no reason, with or without

cause or notice, by me or the company.”

• “no statements or representations regarding my employment can alter this policy.”

• “this Acknowledgment contains a full and complete statement of the agreements and

understandings that it recites, that no one has made any promises or commitments to me

contrary to the foregoing, and that this Acknowledgment supersedes all previous

agreements, whether written or oral, express or implied, relating to the subjects covered

in this Acknowledgment.”13

Mr. Carroll signed the employee acknowledgment on June 3, 2019.14 As Mr. Carroll’s

counsel admitted during oral argument, Mr. Carroll signed the Acknowledgment confirming a

potential position as an at-will executive approximately ten days before he resigned from

Veracyte.

Guardant’s Employee Handbook signed by Mr. Carroll before he resigned from Veracyte

and weeks before accepting employment with Guardant contains a section entitled “Reporting

and Investigating Harassing Conduct” providing, in part:

• incidents of harassment should be reported to Human Resources, which is responsible

for investigating harassment complaints;

• every reported complaint of harassment will be investigated thoroughly and promptly;

• the investigation will include an interview of the employee who lodged the harassment

complaint to obtain complete details regarding the alleged harassment, and interviews of

anyone who is alleged to have committed the acts of harassment to respond to the claims

as well as interviews of employees who may have witnessed, or who may have

knowledge of, the alleged harassment;

• Human Resources, or other company official responsible for the investigation, will

notify the employee who lodged the harassment complaint of the results of the

investigation; and

• the investigation will be handled in as confidential a manner as possible consistent with a

full, fair, and proper investigation.15

Guardant offers Mr. Carroll employment as an at-will Sales Director.

Following background checks, Guardant offered Mr. Carroll the position of Guardant

Regional Sales Director reporting to National Sales Director Danielle Usilton on June 26,

2019.16 Guardant’s offer detailed, among other items, Mr. Carroll’s salary and benefits and

confirmed his June 3, 2019 understanding of at-will employment, specifying: employment with

Guardant is “for no specified period and constitutes at-will employment” terminable by either

party; Guardant “is free to conclude its employment relationship with you at any time, with or

without cause, and with or without notice”; and “[t]his policy of at-will employment is the final

and entire agreement as to how your employment may be terminated and may only be modified

in an express written agreement signed by the Chief Executive Officer of the Company that

expressly changes your at-will status.”17 Mr. Carroll signed the offer confirming his acceptance

on June 27, 2019.18

Mr. Carroll begins his position as Regional Sales Director.

Mr. Carroll began working for Guardant as Regional Sales Director on July 15, 2019.19

He became Guardant’s oldest Regional Sales Director on the team.20 As Regional Sales Director,

Guardant expected Mr. Carroll to manage five sales team members consisting of one man and

five women: Joe Bianco; Pam Olsen; Kim Johnson, Candace Steed, and Vicki Lionberger.21

Mr. Carroll planned to assume management of Mr. Bianco and Ms. Olsen from Leeann Barlow,

who recently received a promotion to a Regional Sales Director position.22 Ms. Usilton

“envisioned a synergy between” Mr. Carroll and Ms. Barlow working closely together.23

Mr. Carroll and his sales team worked with the medical affairs team on the same

accounts. Two women, Lesli Kiedrowski and Becky Nagy, worked in medical affairs and

partnered with sales team members, including Ms. Olsen and Mr. Bianco, and Regional Sales

Director Ms. Barlow.24

Guardant Vice President Collora told Mr. Carroll of his impression Ms. Olsen and Mr.

Bianco needed improvement in their work performances and expected their improvement to be

one of Mr. Carroll’s objectives.25 Mr. Collora felt Ms. Olsen “needed to grow her community

business” beyond her academic accounts at hospitals such as the University of Pennsylvania and

Thomas Jefferson.26 Mr. Collora told Mr. Carroll to put Mr. Bianco on a performance

improvement plan or terminate him because of performance issues.27

Undated reports of Mr. Carroll’s references to female co-workers.

At some point after Mr. Carroll began work on July 15, 2019, Ms. Olsen, Mr. Bianco,

Ms. Barlow, and Ms. Kiedrowski all complained to unidentified persons about allegedly

offensive statements Mr. Carroll made when referring to female co-workers at some unidentified

time. The parties do not tell us when Mr. Carroll allegedly made the three challenged statements

or when his co-workers complained. As adduced in discovery, all we know is Guardant learned

of allegations:

1. Mr. Carroll asked Ms. Olsen: “What the f*** is Lesli’s problem?” referring to

medical affairs team member Lesli Kiedrowski.28 Ms. Olsen felt uncomfortable about

the alleged comment and reported it to Ms. Barlow.29

2. Mr. Carroll commented to Mr. Bianco: “I’ve never worked for a f***ing chick

before.”30 Mr. Bianco felt this comment to be unprofessional and reported it to

Ms. Barlow who in turn reported it to Ms. Usilton.31

3. Mr. Carroll used the word “gals” on a few occasions and allegedly referred to the

sales team with “so many gals” in conversations with Ms. Barlow and

Ms. Kiedrowski.32 Ms. Barlow, who felt uncomfortable with the word “gal,” reported

it to Ms. Usilton,33 who in turn reported the comments to Mr. Collora.34

Ms. Kiedrowski, offended by the use of the word “gal,” reported it to the Vice

President of Human Resources Ms. Merrill.35

Mr. Carroll denies ever making these comments or using the words “chick” or “gal.”

Mr. Carroll did not know who made the complaints about him until discovery in this case.36

At some unidentified time, Mr. Carroll had a business call with Ms. Kiedrowski and

Ms. Olsen, which Ms. Kiedrowski did not like. Ms. Kiedrowski took issue with Mr. Carroll

using the word “we” when referring to his previous experience at Veracyte. By Mr. Carroll’s

testimony, Ms. Kiedrowski called him and said “are you open for some constructive” feedback

and told him use of the word “we” when referring to Veracyte is offensive because “we” is

Guardant.37

Text messages referring to Mr. Carroll.

Ms. Usilton, Ms. Olsen, Ms. Kiedrowski, and Mr. Bianco communicated by text on

August 22 and 23, 2019 regarding a variety of issues including Mr. Carroll. Guardant fired him

within ten days of these messages although the parties do not adduce evidence of a nexus

between these texts and the decision to fire Mr. Carroll. Mr. Carroll instead argues the messages

evidence age and sex bias, including a hostile work environment:

1. In a text exchange between Ms. Kiedrowski and Ms. Barlow, Ms. Kiedrowski said

Mr. Carroll “Talks. So. Damn. Much.” and referred to him as “the male Karen.”38

2. In a text exchange between Ms. Kiedrowski and Ms. Barlow, Ms. Kiedrowski said

Mr. Carroll “is exhausting” to which Ms. Barlow responded, “My new strategy is to

avoid him like the plague.”39

3. In a text exchange between Mr. Bianco and an unidentified person, someone said

Mr. Carroll is “the worst.”40

4. In a text exchange between Ms. Olsen and an unidentified person, Ms. Olsen said,

“Nice to see you and Lesli bonding over something,” possibly referring to their

mutual feeling about Mr. Carroll.41

Guardant’s investigation into Mr. Carroll’s alleged comments in late August 2019.

Guardant began investigating Mr. Carroll’s language and conduct towards female

employees in late August 2019. Neither party explains why Guardant began investigating

Mr. Carroll in later August and possibly only after the text messages. Mr. Collora, Ms. Usilton,

Ms. Merrill, and one other member of Guardant’s human resources department, managed the

investigation into the complaints about Mr. Carroll’s alleged comments.42 Mr. Collora, Ms.

Usilton, and Ms. Merrill planned for Ms. Usilton to interview Ms. Olsen and Ms. Barlow. Mr.

Collora and Ms. Usilton would also interview Mr. Bianco, and Mr. Collora would speak to Mr.

Carroll regarding the allegations.43

Guardant’s policy outlines investigative techniques to ensure a full, fair, and proper

investigation. The parties adduced evidence of Guardant’s objectives and steps for gender based

workplace investigations in place before investigating Mr. Carroll’s comments about women.44

Guardant’s procedures admit any investigation “will be put under intense scrutiny” in

litigation.45 It requires the investigator “normally [an] HR person” to interview the accused,

identify and interview other witnesses, [and] report findings and potential corrective action.46

The corrective action must be “reasonably calculated to prevent the harassment from occurring

again.”47 Corrective action ranges from the most lenient measure of coaching/counseling, to

verbal warning, written warning, suspension, and then termination, which Guardant directs is

“normally not required unless it is the only action that could reasonably be expected to stop the

harassment.”48

The parties also adduced evidence of other men investigated for alleged inappropriate

gender-based conduct. For example, approximately five years before terminating Mr. Carroll,

Guardant investigated accusations by a female employee against a forty-one-year-old male

employee holding the position of Principal Scientist in the Bioinformatics department supervised

by Guardant’s President.49 The forty-one-year-old scientist allegedly inappropriately touched and

caressed the female employee and made inappropriate comments such as asking her to attend a

training away from the office and suggesting they “hav[e] fun together.”50 Guardant’s

investigator (not the accused male’s supervisor) spoke to the female and corroborated the

inappropriate touching “on multiple occasions.”51 Guardant recorded the investigation findings

and outcome in memoranda written by Guardant’s President to the involved employees.

Guardant decided to discipline the accused forty-one-year-old male through counseling rather

than through any other more serious corrective action, including termination.52 Guardant went a

step further and also required “all supervisors of the Company” must attend a two-hour

harassment prevention training session.53 Guardant did not excuse a supervisor from this

mandated training. But Guardant did not fire anyone.

The next example presented to us occurred shortly before Guardant learned of the

allegations against Mr. Carroll. Guardant hired an independent third party investigator to review

gender-based discrimination in late 2018 and early 2019.54 The investigator found a thirty-nine

year old male supervisor’s comments towards a female employee adversely affected their

working relationship. The third-party investigator interviewed witnesses but did not interview the

accuser. Despite the woman’s allegations, the investigator found the thirty-nine-year-old

supervisor exercised his business judgment and his conduct did not appear to be gender related.

The investigator communicated her findings of no discrimination to the female employee, and

Guardant did not discipline the thirty-nine-year-old male supervisor. Guardant offered the female

employee the choice to move and be mentored or stay in her current position.55 Guardant did not

fire anyone after the investigation.

In May 2020 (eight months after terminating Mr. Carroll), Guardant investigated a female

employee’s allegation of discrimination and retaliation by a forty-eight-year-old male employee

who allegedly used a derogatory term about women.56 At the time of the investigation, the forty-

eight-year-old man held the position of Vice President, BioPharma Business Development,

supervised by Senior Vice President Daniel Simon.57 Guardant did not terminate this forty-eight-

year-old male after investigation. It instead issued a stern warning to him even though Guardant

could not corroborate derogatory language. And it reminded the complaining female of the

decision by “Connected Women of Influence” to recognize Senior Vice President Simon as one

of four finalists for the Catalyst for Change at the 2020 Women of Influence Awards two months

earlier. Guardant did not describe its investigation; it only issued a stern warning to the male but

fired the complaining female.58 Guardant did not fire the supervisor.

The only evidence of Mr. Collora’s direct involvement in another disciplinary issue

involves his terminating a female District Sales Manager performing the same duties expected of

Mr. Carroll as a Regional Sales Director.59 The parties do not disclose her age. Mr. Collora

swears he terminated her based on other employees saying she made an unprofessional comment

about doing her nails during a business call.60 He did not speak to her and did not prepare an

investigative report.61

Turning to Mr. Carroll’s investigation, Ms. Usilton spoke to Ms. Barlow at least twice

about Mr. Carroll’s alleged comments asking, “Hey, you know, this is serious. Right? I need to

know exactly what happened. So, you know, double-check if not triple-check that.”62 Ms.

Barlow testified she confirmed to Ms. Usilton her certainty regarding hearsay reports of

Mr. Carroll’s comments.63

Mr. Collora interviewed Mr. Bianco who confirmed Mr. Carroll’s alleged “f***ing

chick” comment.64 Mr. Collora testified he “pressed [Mr. Bianco] incredibly hard” to determine

Mr. Bianco’s truthfulness given his deficient work performance, even telling Mr. Bianco he will

be terminated if he lied about Mr. Carroll’s alleged comments.65

The parties do not tell us whether Mr. Collora, Ms. Usilton, or Ms. Merrill interviewed

Ms. Olsen despite planning to do so. Ms. Olsen later testified she knew “something happened”

regarding Mr. Carroll’s alleged comments but it “didn’t happen to [her]”; she heard only the

“what the f*** is Lesli’s problem?” comment; she “relayed” this comment to Ms. Barlow but did

not “officially ask to report” it; she made no formal complaint against Mr. Carroll; and, she made

no other report of any other alleged comment by Mr. Carroll.66

Mr. Collora called and asked Mr. Carroll on August 29, 2019 if he ever used the word

“chicks.”67 Mr. Carroll disputes the exact question Mr. Collora asked, instead asserting

Mr. Collora asked him if he said he worked on a team “with a bunch of chicks.”68 Mr. Carroll

denied using the word “chicks” and told Mr. Collora he does not use the word “chicks” to refer

to women.69 After Mr. Carroll denied using the word “chicks,” Mr. Collora responded he did not

believe it to be in Mr. Carroll’s character to use the word “chick.”70 Mr. Collora did not ask

Mr. Carroll if he used the words “f***” or “f***ing.”71

The parties dispute several material aspects of this call. Mr. Collora testified he gave Mr.

Carroll “multiple chances” during their conversation where Mr. Collora asked Mr. Carroll

“multiple times the same question.”72 Mr. Collora testified Mr. Carroll initially denied using the

word “chick” but then “wavered at the end where he said he could have said that.”73 Mr. Collora

further testified, “I have made it clear that, you know, we conducted and asked via multiple

challenges, multiple people. Everybody corroborated the same thing. And to hear from [Ms.

Barlow], to hear from [Mr. Bianco], to hear from Pam Ranallo, to hear from [Ms. Usilton], to

hear from the people team, and then to hear Mr. Carroll’s wavering in his own answer, solidified

for me my position that we were making the appropriate decision.”74

Mr. Carroll contends during their August 29, 2019 telephone call, Mr. Collora never told

Mr. Carroll of an investigation, did not take notes, and did not discuss Mr. Carroll’s

performance.75 Guardant admits in part this assertion, denying only the assertion Mr. Collora

never told Mr. Carroll of an investigation as “not supported by the cited record” and brushes off

the assertions as “not a material fact relevant” to Mr. Carroll’s claims.76

Mr. Carroll claims Guardant published the statements attributed to him both inside and

outside the company. He argues Mr. Collora testified only he (Mr. Collora), the human resource

department, and Ms. Usilton took part in the investigation into the statements attributed to him.

But, he claims, Guardant published these statements to Becky Nagy, Senior Director of Medical

Affairs team who did not have a role in the investigation as evidenced by a text message between

Ms. Usilton and another member of the sales team in which Ms. Usilton texted, “S***. I talked

to Becky.”77

Mr. Carroll also claims Guardant published the statements attributed to him outside the

company to former colleagues from Veracyte, Matt Lemiuex and Shane Nelson, who heard

“through the grapevine” Guardant terminated Mr. Carroll for making derogatory comments.78 He

also believes David James, a former colleague, heard about the reason for his termination from

Guardant.79

Guardant terminated Mr. Carroll and replaced him with a younger man.

Mr. Collora decided to terminate Mr. Carroll, and Guardant did so on September 3,

2019.80 Guardant terminated Mr. Carroll “based on the statements he made about women.”81

Guardant did not cite lack of performance or any other reason. Guardant replaced Mr. Carroll

with thirty-seven-year-old David Liebetreu.82

Guardant’s alleged post-termination conduct.

Mr. Carroll eventually sued Guardant on June 29, 2020. Mr. Carroll claims Guardant

repeatedly threatened him with liability and attorney’s fees if he continued to pursue his

claims.83 The parties do not tell us when Guardant allegedly made these threats. In Guardant’s

March 17, 2020 position statement to the Equal Employment Opportunity Commission,

Guardant’s attorney addressed the retaliation claim: “Mr. Carroll’s allegation that the Company

retaliated against him by threatening to seek legal fees is without merit. Guardant is entitled to

proceed with this in response to a frivolous action. . . ..”84

II. Analysis

Mr. Carroll sued Guardant for terminating him because of his age in violation of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., on the basis of his sex

in violation of Title VII, 42 U.S.C. § 2000e-2, and in violation of the Pennsylvania Human

Relations Act (“PHRA”), 43 P.S. § 951, et seq., for age and sex discrimination, as well as state

law contract and tort claims. He denies ever using the words “chicks” or “gals” and contends

Mr. Bianco, Ms. Olsen, and Ms. Barlow, who are younger and female (except for Mr. Bianco),

fabricated their statements to “get him fired” because they resented Mr. Carroll “upsetting the

status quo” and his close relationship with Dr. Lanman. Mr. Carroll argues Guardant, through

Mr. Collora, performed a sham investigation and did not conduct a full and fair investigation of

the alleged comments, and the stated reason for terminating him is pretext for age and sex

discrimination. He also claims Guardant breached a contract of employment, fraudulently

induced him to leave his employer and join Guardant, published defamatory statements about

him, and interfered with his employment contract.

Guardant moves for summary judgment on all claims.85 Mr. Carroll argues genuine

issues of material fact preclude summary judgment.

A. We grant in part and deny in part summary judgment on Mr. Carroll’s

discrimination claims under ADEA .86

Mr. Carroll’s age-based discrimination claim is based on four theories: (1) a disparate

treatment discriminatory termination because of his age; (2) harassment because of his age;

(3) retaliation in the form of threatening him with financial damages and attorney’s fees if he

pursued his legal action because he complained about discrimination and harassment; and,

(4) Guardant’s facially neutral practices, policies, and/or customs have a disparate impact on

employees over forty years old.87 We grant its motion for summary judgment on Mr. Carroll’s

age-based claims under theories of harassment, retaliation, and disparate impact. We deny

summary judgment on Mr. Carroll’s age-based disparate treatment claim because there are

genuine issues of material fact created by Guardant’s inconsistencies in its investigations of

gender-based conduct compared to its policies.

1. Genuine issues of material fact preclude summary judgment on the

disparate treatment claim.

Congress, through ADEA, makes it unlawful for an employer to “discharge any

individual or otherwise discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s age.”88 To prevail

on an ADEA claim, Mr. Carroll must establish, by a preponderance of the evidence, age is the

“but-for” cause of his termination.89 Mr. Carroll must prove his case under the three-part burden

shifting analysis of McDonnell Douglas Corp. v. Green.90

Under the McDonnell Douglas framework, Mr. Carroll must first establish a prima facie

case of discrimination. Satisfying the prima facie case creates an “inference of unlawful

discrimination.”91 To establish a prima facie case of discrimination, Mr. Carroll must show:

(1) he is at least forty years old; (2) he suffered an adverse employment action; (3) he is qualified

for the position; and (4) replacement by another employee sufficiently younger to support an

inference of discriminatory motive.92

If Mr. Carroll satisfies his burden of showing a prima facie case of discrimination, the

burden shifts to Guardant to “articulate a legitimate nondiscriminatory reason for the adverse

employment action.”93 Guardant’s burden is “‘relatively light’” and “is satisfied if [it] provides

evidence, which, if true, would permit a conclusion that it took the adverse employment action

for a non-discriminatory reason.”94

If Guardant articulates a legitimate, nondiscriminatory reason for Mr. Carroll’s

termination, the burden shifts back to Mr. Carroll to “provide evidence from which a factfinder

could reasonably infer [Guardant’s] proffered justification is merely a pretext for

discrimination.”95 To show pretext, Mr. Carroll “must point to some evidence, direct or

circumstantial, from which a factfinder could reasonably either (1) disbelieve [Guardant’s]

articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more

likely than not a motivating or determinative cause of [Guardant’s] action.”96

Mr. Carroll establishes a prima facie case of age discrimination.

Guardant argues Mr. Carroll does not establish the fourth element of a prima facie case of

age discrimination. It argues Mr. Carroll adduced no evidence raising an inference of

discrimination because Mr. Collora hired and fired him in less than two months;97 we cannot

infer discrimination from Mr. Carroll being the oldest Regional Sales Director; and we cannot

infer discrimination because the younger David Liebetreu replaced him.

Mr. Carroll responds he meets the fourth element of the prima facie case because

Guardant replaced him with the thirty-seven-year-old Mr. Liebetreu; Mr. Collora testified he

considers the term “gal” inappropriate language because it is “not 1910”;98 a group of younger,

predominately female co-workers conspired against him to “peripheralize and ostracize him”;

and, Guardant failed to conduct an “actual and true investigation . . . as it normally did when the

accused was younger and/or female.”

Mr. Carroll’s burden at the prima facie stage “is low and may be satisfied by presenting

facts sufficient to show [he] was in fact replaced with a sufficiently younger employee.”99 There

is no dispute Guardant replaced Mr. Carroll with Mr. Liebetreu, twenty years younger than

Mr. Carroll. This evidence meets the fourth element of the prima facie case.100 Having satisfied

his prima facie case, the burden shifts to Guardant to articulate a legitimate non-discriminatory

reason for its decision to terminate Mr. Carroll.

Guardant established a legitimate nondiscriminatory reason for terminating Mr. Carroll.

Under the McDonnell Douglas framework, Guardant next has the burden to produce a

legitimate, nondiscriminatory reason for Mr. Carroll’s termination. Guardant’s burden is one of

production, not of persuasion and our analysis “can involve no credibility assessment.”101 “The

employer satisfies its burden of production by introducing evidence which, taken as true, would

permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment

decision.”102

Guardant identifies its legitimate, nondiscriminatory reason for terminating Mr. Carroll’s

at-will employment as his unprofessional and offensive comments: “What the f*** is Lesli’s

problem?”; “I’ve never worked for a f***ing chick before”; and use of the term “gals” when

referring to women.103 Guardant contends Mr. Carroll’s sales and medical affairs teams reported

these comments, Guardant investigated, and, upon finding Mr. Carroll made the comments

attributed to him, terminated him.

Fact issues preclude summary judgment on pretext.

Having found Guardant offers a legitimate, nondiscriminatory reason for its employment

action, the burden shifts back to Mr. Carroll to show Guardant’s stated reason is pretext for age

discrimination. Under Fuentes, Mr. Carroll must provide us with some evidence, direct or

circumstantial, from which the factfinder could reasonably either (1) disbelieve Guardant’s

articulated legitimate reason; or (2) believe an invidious discriminatory reason is more likely

than not a motivating or determinative cause of Guardant’s action. To establish pretext by the

first Fuentes prong, Mr. Carroll must show “weaknesses, implausibilities, incoherencies, or

contradictions” in Guardant’s proffered reason “[such] that a reasonable factfinder could

rationally find them ‘unworthy of credence.’”104 To establish pretext by the second Fuentes

prong, Mr. Carroll “must point to sufficient evidence that, notwithstanding [Guardant’s] stated

reason for the adverse action, ‘an invidious discriminatory reason’ actually caused the action.”105

Mr. Carroll argues pretext under the first Fuentes prong, urging us to find the adduced

evidence would allow the factfinder to reasonably disbelieve the stated reason. He argues this

disbelief can arise from finding: (1) he never made the comments others attributed to him;

(2) Guardant conducted a sham investigation in contrast to its typical practices; (3) text messages

between the younger, mainly female co-workers who attributed comments to him reflect their

bias; (4) Mr. Collora testified he considers the word “gal” to be inappropriate because it is “not

1910”; and (5) even considering the findings of the “sham” investigation, Guardant could not

reasonably believe Mr. Carroll made the comments attributed to him.

Mr. Carroll can demonstrate pretext by presenting direct and circumstantial evidence

Guardant did not follow its own policies on resolving gender-based misconduct allegations as

confirmed by the way it treated similarly situated persons more favorably.106 Evidence of the

inconsistency between Guardant’s investigation into the comments attributed to Mr. Carroll

compounded by a comparison of investigations into the behavior of the three other men who

acted inappropriately towards their female colleagues may support a showing of pretext.107 In

this Circuit, the “mere fact that an employer failed to follow its own internal procedures does not

necessarily suggest that the employer was motivated by illegal discriminatory intent or that the

substantive reasons given by the employer for its employment decision were pretextual.”108 But

we have more here; Guardant has a policy of how to investigate harassment. The record shows

Guardant did not follow the policy with Mr. Carroll but did follow it (at least in part) with regard

to the three younger men accused of inappropriate conduct. There is a fact issue regarding

Guardant’s treatment of Mr. Carroll both in its investigation and discipline level versus its

treatment of the three younger men.

Recognizing deviation from a policy alone will not demonstrate pretext for

discriminatory animus, Mr. Carroll also argues Guardant’s treatment of three similarly situated

men investigated for physical or verbal harassment of female employees is evidence of an

inconsistency which could lead to a finding of pretext. Our Court of Appeals instructs “similarly

situated” does not mean “identically situated” but “the comparator must be similar in all relevant

respects.”109 “Which factors are relevant is determined by the context of each case, but often

includes a ‘showing that the two employees dealt with the same supervisor, were subject to the

same standards, and had engaged in similar conduct without such differentiating or mitigating

circumstances as would distinguish their conduct or the employer’s treatment of them.’”110

“Similarly situated” comparators “must have committed offenses of ‘comparable

seriousness.’”111 “Whether comparators are similarly situated is generally a question of fact for

the jury” but “summary judgment is appropriate where there is no evidence from which a jury

could conclude the parties were similarly situated.”112

Mr. Carroll argues Guardant investigated accusations by a female employee against a

forty-one-year-old male employee in 2014 who allegedly inappropriately touched her and made

inappropriate comments while holding the position of Principal Scientist in the Bioinformatics

department supervised by Guardant’s President.113 Guardant recorded the investigation findings

and outcome in memoranda to the involved employees and decided to discipline the accused

forty-one-year-old man through counseling, rather than termination.114

Approximately two months before terminating Mr. Carroll, Guardant investigated an

allegation of discrimination and retaliation by a female employee against a thirty-nine-year-old

male employee115 who then held the position of Vice President, Clinical Development

supervised by Guardant’s President .116 Guardant retained an independent third-party

investigator who found insufficient evidence involving the thirty-nine-year-old man to support a

discrimination claim.117

In May 2020 (eight months after terminating Mr. Carroll), Guardant investigated a female

employee’s allegation of discrimination and retaliation by forty-eight-year-old male employee

who allegedly used the word “b****” at a Guardant event.118 At the time of the investigation, the

forty-eight-year-old man held the position of Vice President, BioPharma Business Development

supervised by Daniel Simon, Senior Vice President, BioPharma Business Development.119

Guardant did not terminate this man after investigation.

Mr. Carroll argues the three younger men are similarly situated to him even though those

men work in different positions, different departments, and have different supervisors. He argues

they are all Guardant male employees subject to an investigation into gender-based misconduct

under the uniform human resources policy. His counsel admitted at oral argument the nexus goes

no further than they are male employees in the same company subject to the same policy.

Guardant argues these younger men are not “similarly situated” and are not proper

comparators because they did not hold the same position, worked in different departments, and

had different supervisors than Mr. Carroll. Guardant argues different supervisors can investigate

differently. Guardant’s counsel conceded at oral argument the company’s policy for investigating

complaints is the same and resides in the “Reporting and Investigating Harassing Conduct”

policy in the Employee Handbook.120 It further argues even if the three younger men are

similarly situated, Mr. Carroll fails to show Guardant treated them differently. It points to (1) a

letter written by Guardant’s counsel summarizing the investigation of one of the men;121 (2) a

letter written by Guardant’s counsel in response to a demand made by an accuser of one of the

men;122 and, (3) two memoranda written by Guardant’s President to the accuser and the accused

regarding the investigation into inappropriate touching and comments.123 Guardant argues there

is nothing in these documents indicating differences in the investigation methodology applied to

Mr. Carroll and, like the three younger men, Guardant gave Mr. Carroll a full investigation.

Guardant’s counsel conceded at oral argument its harassment policy applies to all

employees and argued Guardant followed the policy when investigating the three younger men

and Mr. Carroll. Counsel argued the policy is just that–a policy–and there is no requirement for

written documents. The fact remains, however, the documentary evidence appears to show

Guardant afforded the three younger men a more fulsome investigation, particularly regarding

the forty-one-year-old male employee who allegedly inappropriately touched a female colleague

and made inappropriate comments. Although alleged to have physically touched a female co-

worker–possibly a more serious allegation than use of potentially offensive use of the words

“gal” and “chicks”–Guardant disciplined him through counseling rather than termination.

Guardant provided counseling to the three younger men afforded a more fulsome investigation;

Guardant fired Mr. Carroll without the same level of investigation. A jury could find Guardant

used the different and possibly truncated investigation to remove an older worker when it

engaged in a more fulsome investigation to save the jobs of younger workers whose conduct

arguably could be viewed as just as concerning or even more so than Mr. Carroll’s alleged

statements. For example, Mr. Carroll swears he denied these allegations to Mr. Collora; we do

not know what steps Guardant took to evaluate his denials other than not believing him. We are

not second-guessing Guardant’s discretion so long as its methodology is fairly consistent

between an older employee like Mr. Carroll and the three younger employees. These

inconsistencies arising from deviations from policy combined with the varied approaches in

investigating and disciplining the three younger men accused of gender-based misconduct raise a

fact question regarding pretext. The factfinder could see the same standards applying to all four

men and similar gender-based allegations of misconduct and fairly evaluate whether firing Mr.

Carroll is pretext for age discrimination on a disparate treatment theory.

We are not suggesting the factfinder will believe Mr. Carroll’s testimony regarding the

call with Mr. Collora, which purportedly afforded him an opportunity to refute the allegations.

Given the standards applied today on a summary judgment record, we cannot find as a matter of

law Guardant did not deviate from its mandated uniform policies and possibly truncated its

investigation without memoranda of Mr. Carroll compared to other younger supervisors. We

deny summary judgment on the ADEA and age based PHRA disparate treatment claims.

2. We enter judgment in favor of Guardant dismissing age-based hostile

work environment claims.

Mr. Carroll alleges Guardant intentionally and willfully discriminated against and

harassed him because of his age.124 To the extent Mr. Carroll intended to allege an age-based

hostile work environment, he failed to brief it. At oral argument, Mr. Carroll’s counsel argued

text messages from Ms. Barlow and Ms. Kiedrowski, specifically the “male Karen,” talking too

much, and “avoid him like the plague” comments, and their fabricated allegations evidence a

hostile work environment.

To prevail on a hostile work environment claim under ADEA, Mr. Carroll must show:

“(1) he suffered intentional discrimination because of his age; (2) the harassment was severe or

pervasive; (3) the harassment detrimentally affected him; (4) the harassment would detrimentally

affect a reasonable person in that position; and (5) respondeat superior liability.”125 “[S]imple

teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the ‘terms and conditions of employment.’ Instead, a hostile work

environment requires conduct that is ‘severe or pervasive enough to create an objectively hostile

or abusive work environment—an environment that a reasonable person would find hostile or

abusive[.]’”126 Conduct must be “permeated with discriminatory intimidation, ridicule, and insult

. . . sufficiently severe or pervasive to alter the conditions of the victim’s employment and create

an abusive working environment . . . .”127

Although Mr. Carroll alleged harassment because of his age, he did not brief an ADEA

hostile work environment claim. He fails to point us to any evidence of intentional

discrimination because of his age, based on severe or pervasive harassment, harassment

detrimentally affecting him, harassment that would detrimentally affect a reasonably person in

his position, and respondeat superior liability. The text messages he points to do not evidence an

age bias and are neither severe nor pervasive. Comments such as the “male Karen”, talking too

much, and “avoid him like the plague” are not severe or pervasive to create an objectively hostile

or abusive work environment. We enter judgment in favor of Guardant on Mr. Carroll’s hostile

work environment or harassment claim under ADEA.

3. We enter judgment in favor of Guardant dismissing the retaliation

claims under ADEA.

Mr. Carroll alleges he complained about discrimination and harassment,128 but there is no

evidence of what he complained about, to whom he made the complaints, and when he did so.

He did not brief his ADEA retaliation claim.

A plaintiff asserting a retaliation claim under ADEA must first establish a prima facie

case under the McDonnell Douglas framework by showing: “(1) he engaged in protected

activities; (2) the employer took an adverse employment action after or contemporaneous with

the employee’s protected activity; and (3) a causal link exists between the employee’s protected

activity and the employer’s adverse action.”129

There is no evidence of protected activity. Mr. Carroll appears to claim Guardant

retaliated against him post-termination by threatening him with financial damages and attorney’s

fees if he pursued his claims. He does not adduce evidence of a prima facie case of ADEA

retaliation. There is no evidence of a protected activity, adverse action after or contemporaneous

with protected activity, or a causal link between the protected activity and the adverse action. We

enter judgment in Guardant’s favor on Mr. Carroll’s ADEA retaliation claim.

4. We enter judgment in Guardant’s favor dismissing a disparate impact

theory under ADEA.

Mr. Carroll pleads “Guardant’s facially neutral practices, policies, and/or customs had a

disparate impact upon employees over the age of 40.”130 Although not developed, Guardant

argues there is no evidence to support Mr. Carroll’s “completely speculative assertion”

Guardant’s facially neutral practices, policies, and/or customs had a disparate impact on

employees over the age of forty.131

To state a prima facie case for disparate impact under ADEA, Mr. Carroll must

“(1) identify a specific, facially neutral policy, and (2) proffer statistical evidence that the policy

caused a significant age-based disparity.”132

Mr. Carroll does not identify a specific facially neutral policy supported by statistical

evidence causing a significant age-based disparity. He did not brief a disparate impact theory of

age discrimination. We enter judgment in favor of Guardant on a disparate impact theory.

B. We enter judgment for Guardant dismissing the sex discrimination claims.

Mr. Carroll claims Guardant terminated him on the basis of sex in violation of Title VII.

He contends a group of mainly women “shunned” him because he is a man as evidenced by text

messages among Ms. Barlow, Ms. Kiedrowski, Ms. Olson, and Mr. Bianco and contends these

women and Mr. Bianco fabricated the “gals” and “chicks” comments in an effort to have him

terminated. Mr. Carroll contends the text messages evidence an anti-male bias notwithstanding

Mr. Bianco’s alleged participation in the text messaging and reporting of Mr. Carroll’s alleged

comment, “I’ve never worked for a f***ing chick before.”

Under Title VII, it is “an unlawful employment practice for an employer . . . to fail or

refuse to hire or to discharge any individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of employment, because of

such individual’s . . . sex.”133

Like his age-based discrimination claims, Mr. Carroll’s claim is based on four theories:

(1) disparate treatment discriminatory termination because of his sex; (2) hostile work

environment (“harassment”) because of his sex; (3) retaliation through threatening him with

damages and attorney’s fees if he pursued this case; and, (4) Guardant’s facially neutral

practices, policies, and/or customs have a disparate impact on male employees.134

Guardant moves for summary judgment arguing Mr. Carroll cannot: (1) establish a prima

facie case of sex discrimination; (2) establish pretext; (3) establish a hostile work environment

based on sex; and (4) establish retaliation.135 Mr. Carroll responds (1) he satisfies a prima facie

case of sex discrimination; (2) there are fact questions precluding summary judgment on whether

Guardant’s legitimate, nondiscriminatory reason for his termination is pretext; and, (3) there are

fact issues precluding summary judgment on his hostile work environment claim.136 Neither

Guardant nor Mr. Carroll addresses the disparate impact theory, and Mr. Carroll does not address

his retaliation claim.

1. We grant summary judgment dismissing the disparate treatment

claim.

Mr. Carroll argues there is “direct proof” of discrimination entitling him to the “mixed-

motive” framework established by the Supreme Court in Price Waterhouse v. Hopkins.137 Under

the Price Waterhouse “mixed-motive” framework, a plaintiff may show “an employment

decision was made based on both legitimate and illegitimate reasons.”138

He also argues he satisfies his burdens under the McDonnell Douglas burden-shifting

framework to raise a genuine issue of material fact on whether Guardant’s legitimate,

nondiscriminatory reason for his termination–inappropriate comments–is a pretext for sex

discrimination.

The Price Waterhouse “mixed motive” theory.

Mr. Carroll’s direct evidence of discrimination is Mr. Collora’s deposition testimony

characterizing use of the word “gal” as inappropriate because it is “not 1910.” The context of Mr.

Collora’s testimony is:

Q. Is calling a woman “gal,” G-A-L, would you consider that harassment?

A. I would consider it inappropriate language for, you know – not 1910.

Q. What is that? Because –

A. Because our – I think it’s inappropriate language. That’s why. I wouldn’t refer to

my daughter that way. I wouldn’t refer to my wife that way. And –

. . .

You know, and furthermore, you know, it’s about the context of how you’re – of

how you’re speaking. And so, you know, I think in context with calling somebody

“gal” or calling somebody a “f***ing chick” or – you know, frankly, having, you

know, any violation of – of, you know, our rules of conduct as a company. It’s

pretty straightforward. Yeah.139

In addition to the “not 1910” comment, Mr. Carroll’s counsel at oral argument also

pointed to the following as direct evidence of discrimination: (1) his denial he used the words

“gals” or “chicks”; (2) the fact women reported the comments about him; and (3) text messages

among Ms. Barlow, Ms. Kiedrowski, Ms. Olson, and Mr. Bianco.

Our Court of Appeals describes a plaintiff’s showing of direct evidence of discrimination

a “high hurdle.”140 “Direct evidence of discrimination must be ‘so revealing of [discriminatory]

animus that it is unnecessary to rely on the [McDonnell Douglas] burden-shifting framework,

under which the burden of proof remains with the plaintiff.’”141 “To qualify as direct evidence,

‘the evidence must be such that it demonstrates that the decisionmakers placed substantial

negative reliance on an illegitimate criterion in reaching their decision.’”142

Direct evidence must satisfy two requirements: (1) “the evidence must be strong enough

‘to permit the factfinder to infer that a discriminatory attitude was more likely than not a

motivating factor in the [defendant’s] decision’”; and (2) “the evidence must be connected to the

decision being challenged by the plaintiff . . . Specifically, any statements made by a

defendant’s employees must be made at a time proximate to the challenged decision and by a

person closely linked to that decision.”143 If a plaintiff meets the “high hurdle” of direct evidence

of discrimination, “the defendant has the burden of producing evidence to show that it would

have made the same decision in the absence of discriminatory animus.”144

Mr. Carroll does not meet his burden of showing Mr. Collora’s deposition testimony–the

word “gal” is inappropriate because it is “not 1910”–is direct evidence of sex discrimination.

Mr. Collora’s post termination deposition testimony does not permit the factfinder to infer a sex-

based discriminatory attitude is more likely than not a motivating factor in Guardant’s decision.

There is nothing sex-based about the “not 1910” testimony. We also fail to see how Mr. Carroll’s

denial of using alleged inappropriate words, incidents of women reporting perceived

inappropriate comments regarding a man to their employers or the text messages constitute direct

evidence of discrimination. This is particularly true where Mr. Bianco, a man, reported Mr.

Carroll as using the phrase “f***ing chick” and also participated in the text messaging. Mr.

Carroll fails to meet his initial burden of proving gender discrimination under the mixed-motive

theory, and those claims fail.

McDonnell Douglas pretext theory.

The McDonnell Douglas burden-shifting analysis applies to Mr. Carroll’s sex-based

discrimination claims.145 Mr. Carroll must first establish a prima facie case of discrimination

based on his sex. To state a prima facie case of sex-based discrimination, Mr. Carroll must show:

“1) membership in a protected class; 2) qualification for the position; 3) an adverse employment

action taken against him despite being qualified; and (4) ‘the action occurred under

circumstances that could give rise to an inference of intentional discrimination.’”146 “In essence,

the plaintiff must establish ‘some causal nexus’ between membership in the protected class and

the termination decision.”147

If Mr. Carroll establishes a prima facie case, the burden shifts to Guardant to produce

evidence of a legitimate, nondiscriminatory reason for his termination. If Guardant does so, the

burden shifts back to Mr. Carroll to provide evidence the legitimate, nondiscriminatory reason

for termination is a pretext for discrimination.

Guardant challenges the fourth element of the prima facie test, arguing Mr. Carroll does

not adduce evidence of similarly situated people outside his protected class treated more

favorably or some other evidence showing a causal nexus between his gender and his

termination. Guardant argues Mr. Carroll fails to show similarly situated women treated more

favorably than he. Guardant points to a woman in the same department as Mr. Carroll,

investigated by Mr. Collora, and subsequently terminated for unprofessional comments about

doing her nails during a business call.

Mr. Carroll does not respond to the evidence regarding this woman. He instead cites

evidence he asserts gives rise to an inference of discrimination based on gender: Mr. Collora’s

“not 1910” deposition testimony; the women with whom he worked “shunned” him; text

messages among the women showing they wanted to “avoid him like the plague”; Guardant did

not interview Ms. Olsen who did not hear the “gals” comment (although she testified Mr. Carroll

asked her “what the f*** is Lesli’s problem?”); Guardant fabricated the statements attributed to

Mr. Carroll and then conducted a faulty investigation, “which was essentially nothing more than

talking to the very people who had an ax to grind against Mr. Carroll because of his age and

gender and who made up these statements.”148

At oral argument, Mr. Carroll’s counsel argued there is a clear fact question regarding

credibility: Mr. Carroll’s denial of using the words “gal” and “chicks” versus the accounts of

women who disliked him and purportedly had motive to fabricate the alleged “gal” and “chicks”

comments to “get rid of” him. When asked for the evidentiary nexus between Mr. Carroll’s sex,

Ms. Barlow’s and Ms. Kiedrowski’s alleged fabricated statements, and Guardant’s decision to

terminate Mr. Carroll, his counsel argued the women bore discriminatory animus against him

based on sex and age and Mr. Collora did not believe the women. Mr. Carroll’s counsel argued

this is evidenced by the comment Mr. Collora made to Mr. Carroll during the August 29, 2019

phone call where Mr. Collora remarked he thought Mr. Carroll’s use of the word “gal” and

“chicks” is inconsistent with his character. Mr. Carroll’s counsel identifies this as the fact

question precluding summary judgment on pretext.149

This evidence does not give rise to an inference of gender-based intentional

discrimination. The “not 1910” comment post-adverse action does not evidence gender

discrimination; the alleged text messages among several women and Mr. Bianco, a man, does not

evidence gender-based “shunning.” Mr. Carroll asserts the women fabricated the “gal” and

“chicks” comments to “get rid” of him, but Mr. Bianco also reported the “f***ing chick”

comment and there is no evidence the women fabricated the statements; only Mr. Carroll’s

denial he made such comments. Mr. Collora, Ms. Usilton, and Ms. Merrill received complaints

about offensive language. Mr. Collora and Ms. Usilton investigated and made credibility

determinations and terminated Mr. Carroll. There is no evidence creating a genuine issue of

material fact to create an inference of sex-based intentional discrimination. Mr. Carroll fails to

make a prima facie case of Title VII sex-based discrimination.

Even if Mr. Carroll met his burden of showing a prima facie case, there is no genuine

issue of fact as to pretext. Mr. Carroll points to the same evidence to support the fourth element

of the prima facie case. He argues there are fact issues on pretext because: he denied making the

comments attributed to him; a “group of disgruntled” female employees were angry because he

“upset the status quo” as evidenced by their text messages; and Guardant never allowed

Mr. Carroll a chance to refute the allegations against him all create fact issues regarding pretext.

Under Fuentes, Mr. Carroll must point to some evidence, direct or circumstantial from

which the factfinder could reasonably either (1) disbelieve Guardant’s articulated legitimate

reasons, or (2) believe that an invidious discriminatory reason was more likely than not a

motivating or determinative cause of Guardant’s action.150

Mr. Carroll is strident in his denial of the statements attributed to him. He argues this is a

classic “he-said-they-said” situation, which “alone generates a genuine dispute of material fact”

making summary judgment inappropriate. We disagree. The issue is not whether Guardant is

wrong or mistaken about his use of inappropriate language; “the factual dispute at issue is

whether discriminatory animus motivated the employer, not whether the employer is wise,

shrewd, prudent, or competent.”151 In “he-said-they-said” credibility determinations, a plaintiff

must “bring forth evidence that [the employer] did not have an honest belief that [the plaintiff]

engaged in misconduct justifying termination.”152 Mr. Carroll must demonstrate Guardant’s

explanation is dishonest due to “weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions from which a reasonable juror could conclude that [Guardant’s] explanation is

unworthy of credence, and hence infer that the employer did not act for the asserted [legitimate]

reasons.”153

The issue is not whether Mr. Carroll made the comments for which Guardant terminated

him; the issue is whether Guardant believed he made the statements.154 Mr. Collora testified he

asked Mr. Bianco about Mr. Carroll’s statement, “I’ve never worked for a f***ing chick before.”

Mr. Collora testified Mr. Bianco confirmed the statement and “pressed [Mr. Bianco] incredibly

hard,” threatening to fire Mr. Bianco if he lied about the statement.155 Mr. Bianco testified he

told both Ms. Barlow and Mr. Collora about the “f***ing chick” comment.156

Ms. Usilton testified she asked Ms. Barlow at least twice about Mr. Carroll’s alleged

comments asking, “Hey, you know, this is serious. Right? I need to know exactly what

happened. So, you know, double-check if not triple-check that.”157 Ms. Barlow testified she

confirmed to Ms. Usilton her certainty regarding reports of Mr. Carroll’s inappropriate

comments.158

Mr. Collora telephoned Mr. Carroll to ask if he ever used the word “chicks” or phrase

“bunch of chicks.”159 Mr. Carroll denied using the word “chick” and told Mr. Collora he does

not use the word “chicks” to refer to women.160 After Mr. Carroll denied using the word “chick,”

Mr. Collora responded he did not believe it to be in Mr. Carroll’s character to use the word

“chick.”161 Mr. Collora did not ask Mr. Carroll if he used the words “f***” or “f***ing.”162

Mr. Collora testified he gave Mr. Carroll “multiple chances” during their conversation

where Mr. Collora asked Mr. Carroll “multiple times the same question.”163 Mr. Collora testified

Mr. Carroll initially denied using the word “chick” but then “wavered at the end where he said he

could have said that.”164 Mr. Collora further testified, “I have made it clear that, you know, we

conducted and asked via multiple challenges, multiple people. Everybody corroborated the same

thing. And to hear from [Ms. Barlow], to hear from [Mr. Bianco], to hear from Pam Ranallo, to

hear from [Ms. Usilton], to hear from the people team, and then to hear Mr. Carroll’s wavering

in his own answer, solidified for me my position that we were making the appropriate

decision.”165

Mr. Collora made a credibility decision based on the information before him. Mr. Carroll

challenges the decision claiming it was based on a faulty or sham investigation. But there is no

evidence Mr. Collora decided to fire him based on gender bias. The evidence shows Mr. Collora

terminated a younger woman without investigation after she commented on “doing her nails”

during a business call. Guardant’s investigation of alleged misconduct by the three younger men

– which Mr. Carroll points to as legitimate investigations – does not support his gender-bias

claim as all three are men.

Mr. Carroll’s assertion the group text messaging among mainly women, although

Mr. Bianco is among the messaging, arguably evidences discontent with Mr. Carroll. We do not

see how it shows gender-bias among non-decision makers. It is undisputed Mr. Collora made the

decision to terminate Mr. Carroll and is not on the text messaging.

Mr. Carroll fails to meet his burden of showing pretext in his gender-based discrimination

claim. We enter summary judgment in favor of Guardant.

2. We grant summary judgment dismissing the hostile work

environment claim based on sex.

We similarly find Mr. Carroll fails to establish a genuine issue of material fact of a

gender-based hostile work environment claim. To establish a prima facie case of hostile work

environment under Title VII, Mr. Carroll must show: “(1) intentional discrimination based on

sex; (2) severe or pervasive conduct; (3) a detrimental effect on the plaintiff; (4) a detrimental

effect on a reasonable person in similar circumstances; and (5) the existence of respondeat

superior liability.”166

Our Court of Appeals recently instructed we must analyze the alleged harassment by

looking at all the circumstances. These circumstances include the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work

performance. We must also find; “discriminatory ‘conduct must be extreme [enough] to amount

to a change in the terms and conditions of employment’”; and “[u]nless extremely serious,

offhand comments and isolated incidents are insufficient to sustain a hostile work environment

claim.”167

Mr. Carroll describes a “coven of colleagues” and “cooperative clique” comprised of

Ms. Kiedrowski, Ms. Barlow, and Ms. Olsen. He points to their late August 2019 text messages

as evidence of their dislike of him because he is a man. He argues there are genuine issues of

material fact as to how these women treated him and their motivation in doing so precluding

summary judgment. He ascribes liability to Guardant because it knew or should have known of

the “harassment.”

The text messages Mr. Carroll points to are comments referring to him as “the male

Karen”; calling him “exhausting”; expressing a desire to “avoid [Mr. Carroll] like the plague”;

calling him “the worst”; and commenting it is “nice to see” Ms. Barlow and Ms. Kiedrowski

bonding over something, Mr. Carroll infers is a shared “hatred” of him.

Mr. Carroll also points to a comment he made during a business call with

Ms. Kiedrowski and Ms. Olsen, which Ms. Kiedrowski did not like. Ms. Kiedrowski took issue

with Mr. Carroll using the word “we” when referring to his previous experience at Veracyte. By

Mr. Carroll’s testimony, Ms. Kiedrowski called him and said “are you open for some

constructive” feedback and told him use of the word “we” when referring to Veracyte is

offensive because “we” is Guardant.168

Like his age-based hostile work environment claim fails, Mr. Carroll fails to adduce

evidence of a prima facie case of a hostile work environment. He fails to adduce evidence of a

workplace “permeated with discriminatory intimidation, ridicule, and insult . . . that [was]

sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive

working environment.”169 The text messaging does not evidence gender-based intimidation,

ridicule, or insult. There is no evidence Mr. Carroll knew of the text messaging. “The Supreme

Court has been clear that a plaintiff must point to ‘extreme’ conduct to support an actionable

hostile work environment claim; ‘offhand comments,’ ‘isolated incidents,’ and ‘mere

utterance[s] of an ethnic or racial epithet which engenders offensive feelings in an employee’ do

not suffice.”170

Mr. Carroll fails to adduce evidence comments like “the male Karen,” “he’s the worst”

and “exhausting” are so severe or pervasive to alter his work environment. We are reminded by

our Court of Appeals “[t]he Supreme Court has made clear that Title VII is not ‘a general civility

code’ and that ‘the ordinary tribulations of the workplace’ are not grounds for a hostile work

environment claim.171

To the extent Mr. Carroll argues an all-woman “clique” of text messaging of which he is

not a part because he is a man supports a hostile work environment, his argument is not

supported by the evidence. Mr. Bianco, a man, participated in the text messaging. Mr. Carroll

fails to state prima facie case of hostile work environment.

3. We grant summary judgment dismissing the retaliation claim.

Mr. Carroll claims Guardant retaliated against him “because of his complaints about

discrimination and harassment as to the Company’s failure to conduct a full and fair

investigation of false and defamatory claims made against him” regarding inappropriate

comments about women.172 Guardant moves for judgment. Mr. Carroll did not brief this issue.

To proceed with a prima facie case of Title VII retaliation, Mr. Carroll must show:

(1) [he] engaged in activity protected by Title VII; (2) the employer took an adverse employment

action against [him]; and (3) there was a causal connection between [his] participation in the

protected activity and the adverse employment action.”173

Like his ADEA retaliation claim, Mr. Carroll adduced no evidence of his protected

activity. He alleged he complained about discrimination and harassment as to Guardant’s failure

to conduct a full and fair investigation of false and defamatory claims made against him. But he

paints a picture of being unaware of Guardant’s investigation. He claims Guardant did not give

him a a chance to respond to allegations. He also claims Guardant fired him without telling him

who made claims against him. We cannot find protected activity. There is no genuine issue of

material fact on a retaliation claim based on Mr. Carroll’s protected activity in complaining

about discrimination on the basis of his sex.

4. We grant summary judgment on the disparate impact claim.

Mr. Carroll alleged Guardant’s “facially neutral practices, policies, and/or customs had a

disparate impact upon male employees at Guardant in violation of Title VII.”174 He alleged, for

example, Guardant “did not follow its own practices, policies and/or customs in handling the

complaints lodged against Mr. Carroll and did not investigate the complaints in the same manner

as it handles complaints by and against female employees.”175 Following discovery, Guardant

moved for judgment. Neither party briefed a disparate impact theory of discrimination.

“[T]o establish a prima facie case of disparate impact in a Title VII case, a plaintiff must

(1) identify a specific employment policy or practice of the employer and (2) proffer evidence,

typically statistical evidence, (3) of a kind and degree sufficient to show that the practice in

question has caused exclusion of applicants for jobs or promotions (4) because of their

membership in a protected group.”176

Mr. Carroll provides us with no evidence to support a disparate impact theory of

discrimination. He does not identify a facially neutral company policy or practice affecting men

differently from women. Even if we assume the policy is “investigating complaints”, the only

evidence regarding an investigation of a female employee shows Guardant afforded her even less

opportunity to defend herself when Mr. Collora fired her for talking about her nails on a sales

call.

Mr. Carroll also adduces no statistical evidence. Mr. Carroll’s disparate impact theory of

discrimination fails.

C. We enter judgment for Guardant on the breach of contract claims.

Mr. Carroll alleges Guardant breached an oral contract regarding the terms of his

employment and breached its duty of good faith and fair dealing implied in every contract under

Pennsylvania law. He contends he is not an at-will employee. Guardant seeks summary judgment

on the breach of contract claim arguing it fails as a matter of law because Mr. Carroll had an at-

will employment relationship with Guardant.

Mr. Carroll responds to summary judgment with two separate arguments: (1) he had a

verbal employment contract; and, presumably alternatively, (2) he can rebut the presumption of

at-will employment under Pennsylvania law. He argues even if he had an at-will relationship

with Guardant, the implied duty of good faith and fair dealing remains Guardant’s obligation.

There is no genuine issue of material fact on a verbal employment contract.

Under Pennsylvania law, “parties may bind themselves [to employment] contractually

prior to the execution of the written document through mutual manifestations of assent.”177

“Thus evidence of mutual assent to employ and be employed which contains all the elements of a

contract may be construed as a binding contract of employment through [sic] not reduced to

writing.”178

Mr. Carroll asserts he had a verbal contract of employment after discussions with

Mr. Collora and Ms. Usilton.179 To proceed to trial on a breach of contract claim under

Pennsylvania law, Mr. Carroll must adduce evidence showing “1) the existence of a contract,

including its essential terms; 2) a breach of a duty imposed by the contract; and 3) resultant

damage.”180

In response to questions regarding an implied or verbal employment contract, Mr. Carroll

swore:

• In discussions with Mr. Collora and Ms. Usilton, “all along the way, we planned, we had

time to plan and we talked about long-term growth, what we see in the future, how this

company is going to outperform for years to come. And you’re [Mr. Carroll] going to be

a cornerstone of it. Your experience is going to help us get to where we have to get, and

we’re going to do this over time. And it’s a great career move, et cetera, et cetera. . . .

[W]e had a lot of time to communicate. And the communication was always positive

about if you join, things are going to go well for all of us. We want you. We expect this

to go well long term. Both of us expected it to go well long term. It was verbally said. But

even without verbally saying it, why in God’s name would [Ms. Usilton] or [Mr. Collora]

waste their time on me if they didn’t want me to stay long term. These are smart

salespeople. They want to bring people on that are going to help their terms. So that said,

it was implied and also verbal, to me this was the last place I was going to be.”181

• “[D]uring that time together [he, Mr. Collora, and Ms. Usilton], there was a lot of talk

about me being there and helping the team over the long haul, over the time that this

company is going to exist. Building the team. Same sort of aspirations [Mr. Collora] has

for himself, he had for me, which is to stay here long term and do well and see this

company through. Same, you know, feelings [Ms. Usilton] had for herself. And we

shared that. You know, this is what is expected of me. To be part of this team as we grow

going forward and make this, you \know, another great company like Veracyte.

Veracyte, I’ve been in eight-and-a-half years. If there’s implications, it’s going to last a

long time.”182

This is the entirety of the evidence Mr. Carroll believes formed a verbal contract of

employment with Guardant. While admitting he believed he had a verbal contract with Guardant

as “the last place he was going to be” employed in his career, he objects to Guardant’s reliance

on his deposition testimony as the basis for his claim.183 He argues his response to deposition

questions called for legal conclusions to which his counsel objected and are “inadmissible in

support of a motion for summary judgment as they do not represent undisputed facts.”184 But if

we cannot rely on Mr. Carroll’s testimony regarding the terms of the alleged verbal employment

contract, where is the evidence to establish such a contract and the agreed upon terms?

Mr. Carroll does not provide us with evidence of the parties’ mutual assent to employ

him or the terms of the employment outside of the at-will terms twice agreed by him. Mr.

Carroll’s argument is distinguishable from the arguments in George W. Kistler, Inc., which he

argues is applicable. In George W. Kistler, Inc, an employer sought to enforce a non-compete

agreement against its former employee. The former employee contended the parties’ verbal

agreement reached two weeks before a written agreement did not include this non-compete

provision and the written agreement was not supported by adequate consideration. The

Pennsylvania Supreme Court agreed with the employee, finding evidence of “not only [of an

oral agreement] [where employee] would cease working for his present employer and begin

working for [new employer], but all aspects of the employment relationship such as wages,

duties and benefits were also agreed upon” . . . “without any promise not to engage in a

competitive enterprise.”185

Mr. Carroll adduces no evidence of terms defining the terms of an employment

relationship beyond the at-will agreement. We have only Mr. Carroll’s testimony he understood

he entered a verbal employment contract for long-term employment based on his discussions

with Mr. Collora and Ms. Usilton “this was the last place [he] was going to be.” Unlike the

employee in George W. Kistler, Inc., Mr. Carroll does not adduce evidence of “mutual assent to

employ and be employed which contains all the elements of a contract” which “may be

construed as a binding contract of employment.”

We enter judgment in favor of Guardant on breach of a verbal employment contract.186

There is no genuine issue of material fact to rebut the presumption of at-will employment.

Under Pennsylvania law, “employment is presumed to be at-will unless it is shown that

the parties contracted to restrict the right to terminate employment.”187 “An at-will employment

relationship may be terminated by either the employer or the employee at any time, for any

reason, or for no reason.”188 “Where the plaintiff has acknowledged that the employment is at-

will, the presumption of at-will employment controls.”189

Guardant’s offer letter to Mr. Carroll and its Employee Handbook–both of which he

signed–state employment is at-will. Mr. Carroll conceded his at-will status:

Q. Did you believe you were an at-will employee at Guardant?

A. Yes. . . . It’s an at-will company.

Q. Did you believe you were an at-will employee?

A. Yes.190

Mr. Carroll may rebut the presumption of at-will employment by establishing one of the

following: “(1) an agreement for a definite duration; (2) an agreement specifying that the

employee will be discharged for just cause only; (3) sufficient additional consideration; or (4) an

applicable recognized public policy exception.”191 Mr. Carroll contends there is additional

consideration to rebut the at-will presumption.

“An employee attempting to overcome the presumption of at-will employment must

show clear and precise evidence of an implied-in-fact contract, which may be established by an

agreement for employment for a definite duration or by the employee providing ‘additional

consideration.’”192 “The term ‘additional consideration’ refers to an employee affording an

employer a substantial benefit, or undergoing a substantial hardship, other than the services

which the employee was hired to perform.”193 If Mr. Carroll “is able to prove that [he] provided

additional consideration, the court may infer that the parties intended to overcome the at-will

presumption.”194

The question of whether there is sufficient additional consideration is a question of fact

generally left for the jury, but “[c]ourts generally require a showing of some ‘extraordinary

benefit’ or ‘extraordinary detriment’ before allowing the question to reach the jury.”195 We

require this showing because the burden of proof to overcome the presumption of at-will

employment is “very great.”196 “The court itself may answer questions of fact regarding the at-

will presumption when ‘the resolution of the issue is so clear that reasonable minds would not

differ on its outcome.’”197

Mr. Carroll contends there is sufficient additional consideration to rebut the presumption

of at-will employment. He cites substantial hardship when (a) he left his position at Veracyte

foregoing hundreds of thousands of dollars in restricted stock options; and, (b) joined Guardant

to again work with Dr. Lanman after being heavily recruited.

We cannot find authority, and Mr. Carroll provides us with none, where leaving a

position with restricted stock options and taking a position with a mentor after recruitment is

sufficient to rebut the presumption of at-will employment. In Cashdollar v. Mercy Hospital of

Pittsburgh, the Pennsylvania Superior Court found plaintiff who resigned from his job in

Virginia, sold his house, and moved his pregnant wife and two-year-old child to Pittsburgh only

to be terminated sixteen days after starting with his new employer rebutted the at-will

presumption.198 In News Printing Co., Inc. v. Roundy, the Pennsylvania Superior Court found

plaintiff rebutted the at-will presumption on termination after three-months by showing he left

employment in Massachusetts, turned down another offer of employment, sold his family’s home

and bought a new home in Pennsylvania.199 By contrast, in Woods the court granted summary

judgment to the employer when it retracted a job offer to a pilot intending to move from England

to Philadelphia, finding no genuine issue of material fact of additional consideration to overcome

the at-will presumption.200 The court rejected plaintiff’s argument taking a course to obtain flight

certification and turning down another job offer sufficient additional consideration to rebut the

at-will presumption.201 Mr. Carroll does not offer evidence of a long distance move, sale of his

home, or similar circumstances considered by Pennsylvania courts to be sufficient additional

consideration.

Mr. Carroll knew of his at-will employment before he left Veracyte where he had

$350,000 to $400,000 in stock options. He began employment after signing the June 3, 2019

acknowledgment of the Employee Handbook and the June 26, 2019 offer letter both stating his

employment was at-will. With both the Employee Handbook and offer letter in hand clearly

stating his employment was at-will, Mr. Carroll left Veracyte and his stock options to take a

position at Guardant. In Parment v. Crown Cork & Seal Co., Inc., employer terminated plaintiff

employee after nine months of employment where plaintiff terminated his business, sold his

home, his wife quit her job, and relocated to South Africa believing he would be working for at

least two years.202 The court found plaintiff’s signing of two documents “prominently stated that

he was an at-will employee and that his assignment letter did not constitute a contract of

employment. Even if the court were to find additional consideration, the disclaimers require the

court to interpret this as an at-will contract.”203

There is no genuine issue of fact regarding additional consideration in Mr. Carroll’s

acceptance of at-will employment. We similarly see no genuine issue of fact regarding additional

consideration by accepting the position at Guardant to have the opportunity to work again with

his mentor Dr. Lanman. We enter summary judgment in Guardant’s favor on the breach of

contract claim.

Duty of good faith and fair dealing does not apply.

Under Pennsylvania law, “the covenant of good faith and fair dealing [, when applicable,]

acts as a term of the contract, and that covenant arises from the contract itself.”204 “A breach of

the implied duty of good faith is, therefore, a breach of the contract between the parties.”205

“Pennsylvania law does not recognize a separate claim for breach of implied covenant of good

faith and fair dealing.”206 Having dismissed the breach of contract claim, we dismiss

Mr. Carroll’s breach of the duty of good faith and fair dealing claim.

D. We enter judgment for Guardant on the fraudulent inducement claim.

Mr. Carroll alleges Guardant fraudulently induced him to enter into an employment

contract based on the same facts supporting his breach of contract claim, including

misrepresentations made by Guardant to Mr. Carroll regarding its plans for expansion, its desire

to have Mr. Carroll implement his management techniques to improve underperforming sales,

and its general interest in having Mr. Carroll as a long-term member of the company. He alleged

Guardant made these and other representations knowing he “was on the fence” about taking a job

at Guardant and wanted him to accept the job offer.

The elements of a claim for intentional misrepresentation under Pennsylvania law are:

“(1) [a] representation; (2) which is material . . . ; (3) made falsely, with knowledge of its falsity

. . . ; (4) with the intent of misleading another . . . ; (5) justifiable reliance on the

misrepresentation; and[ ] (6) the resulting injury was proximately caused by the reliance.”207

Mr. Carroll argues “many disputes of material fact . . . relating to what was promised to

[him] to leave his secure position and join Guardant” precludes summary judgment. Guardant

argues Mr. Carroll cannot establish the third, fourth, and fifth elements of a claim for fraudulent

inducement. On the third element, Guardant points to Mr. Carroll’s deposition testimony:

Q. Do you believe that there were any misrepresentations made to you during the

hiring process?

A. No.208

Mr. Carroll disputes this, also pointing to his deposition testimony:

Q. When the company was trying to get you to join, so when they’re recruiting you,

at that time do you think, do you believe that any misrepresentations were made

to you?

A. Yes. We were going to have a long-term relationship. That’s what I was

after . . . .209

Guardant argues Mr. Carroll’s testimony only highlights he cannot meet the fourth

element of fraudulent inducement–intent to mislead him–because he testified:

Q. Now, at the time that they talked about the long-term relationship, do you believe

They were misrepresenting it when they discussed it?

A. I doubt it was deliberate. I don’t think they brought me in to let me go in 37 days.

I believe they had the same intention as me, to have a good working relationship.

Why else go through the trouble. But I felt very secure going in that if I just did

what I do, follow directions, do my job to the highest, that I would still be with

the company today.210

Guardant argues even if there is a misrepresentation, Mr. Carroll cannot show the fifth

element–justifiable reliance on the misrepresentation–because the offer letter had an integration

clause.

Mr. Carroll provides no response to Guardant’s arguments except to say “there are many

disputes of material fact . . . relating to what was promised to [him] to induce him to leave his

secure position and join Guardant.”

E. We enter judgment for Guardant on the tortious interference claim.

Mr. Carroll alleges he had a valid, binding, and enforceable contract of employment with

Guardant in spring 2019. He alleges “several employees of Guardant” knew of his contract and

“intentionally and improperly lied to Guardant management claiming Mr. Carroll made

inappropriate statements referring to female colleagues” ultimately leading to his termination.211

He alleges Guardant tortiously interfered with the parties’ employment contract. Mr. Carroll does

not sue his co-workers.

Under Pennsylvania law, “a party is liable for pecuniary loss due to tortious interference

with a contractual relationship when the party ‘intentionally and improperly interferes with the

performance of a contract (except a contract to marry) between another and a third person by

inducing or otherwise causing the third person not to perform the contract . . . .”212 The elements

of the claim are: “(1) [T]he existence of a contractual relationship between the complainant and a

third party; (2) an intent on the part of the defendant to harm the plaintiff by interfering with that

contractual relationship; (3) the absence of privilege or justification on the part of the defendant;

and (4) the occasioning of actual damage as a result of defendant's conduct.”213

Mr. Carroll had an at-will employment relationship with Guardant. As a matter of

Pennsylvania law, “an action for intentional interference with performance of a contract in the

employment context applies only to interference with a prospective employment relationship

whether at-will or not, not a presently existing at-will employment relationship.”214

Even if Mr. Carroll had an employment contract with Guardant, under Pennsylvania law,

Guardant cannot tortiously interfere with a contract to which it is a party.215 “A corporate entity

and its agents are not distinct parties for purposes of contracting . . . [t]hus a corporation’s agents

or employees generally cannot, as a matter of law, tortuously interfere with the corporation’s

own contracts.”216 An agent can qualify as a third party if her acts fall outside the scope of

employment.217

There are no allegations, evidence of, or even an argument in Mr. Carroll’s opposition to

summary judgment his colleagues who he claims fabricated statements acted outside the scope of

their employment. We dismiss the intentional interference with contract claim.

F. We enter judgment for Guardant on the defamation claim.

Mr. Carroll claims Guardant, through its employees and agents, published his alleged

comments to third parties inside and outside of the company. He claims several employees from

his former position at Veracyte contacted him after his termination from Guardant “expressing

their condolences and disbelief [he] would make inappropriate comments.” Mr. Carroll claims

Guardant damaged his reputation and personal and professional standing within the community.

Guardant seeks summary judgment on Mr. Carroll’s defamation claim. Guardant argues

the defamation claim fails as a matter of law because (a) there is no evidence Guardant published

any statements outside the company; and (b) statements inside the company were made during

the investigation into Mr. Carroll’s conduct and are privileged. Mr. Carroll does not respond to

Guardant’s argument there is no evidence statements were published outside of the company.

He instead focuses on statements made inside the company, arguing Guardant abused its

conditional privilege.

Under Pennsylvania law, Mr. Carroll has the burden of proving the elements of a

defamation claim: “(1) The defamatory character of the communication. (2) Its publication by

the defendant. (3) Its application to the plaintiff. (4) The understanding by the recipient of its

defamatory meaning. (5) The understanding by the recipient of it as intended to be applied to the

plaintiff. (6) Special harm resulting to the plaintiff from its publication. (7) Abuse of a

conditionally privileged occasion.”218

If Mr. Carroll meets his burden, Guardant has the burden of proving: “(1) The truth of the

defamatory communication. (2) The privileged character of the occasion on which it was

published. (3) The character of the subject matter of defamatory comment as of public

concern.”219

There is no evidence of publication outside of Guardant.

Mr. Carroll believes two former colleagues from Veracyte, Matt Lemiuex and Shane

Nelson, heard “through the grapevine” Guardant terminated Mr. Carroll for making derogatory

comments.220 He also believes David James heard about the reason for his termination from

Guardant.221

Mr. Lemieux testified: he did not know until three weeks before his October 29, 2020

deposition when an attorney called to ask him if he knew Guardant no longer employed

Mr. Carroll; the call from the attorney is the first time he became aware Guardant no longer

employed Mr. Carroll, he does not know the circumstances under which Guardant terminated

Mr. Carroll; and he did not know of an alleged wrongful termination until Mr. Carroll told him

Guardant terminated him.222

Mr. Nelson testified: he became aware at a meeting with Veracyte colleagues Guardant

no longer employed Mr. Carroll but did not know any detail; he knows “there was a complaint”

against Mr. Carroll but does not know details; he does not recall Mr. Lemieux asking him if he

heard Guardant fired Mr. Carroll for making derogatory comments; he does not recall speaking

to anyone about the reason Guardant terminated Mr. Carroll’s employment; and did not have any

communications with current or former Guardant employees about the reason for Mr. Carroll’s

separation from Guardant.223

Mr. James, a former colleague of Mr. Carroll, testified he did not know Guardant no

longer employed Mr. Carroll until Mr. Carroll called him and further testified he did not know

the reason for the separation until Mr. Carroll told him.224

Mr. Carroll fails to meet his burden of producing evidence of publication of an alleged

defamatory statement by Guardant to a third person.225 There is no evidence of publication. The

three individuals Mr. Carroll believes to have heard the alleged defamatory reason for his

termination from Guardant did not know the basis of termination.

There is no evidence Guardant abused a conditional privilege.

It is Guardant’s burden to show its communications are privileged. Mr. Carroll concedes

there is a conditional privilege for workplace investigations, but argues Guardant abused the

privilege. Once Guardant shows its communications are privileged, it is Mr. Carroll’s burden to

show it abused the privilege.226

Pennsylvania recognizes a conditional privilege “when the speaker and recipient share a

common interest in the subject matter and both are entitled to know the information,” including

“when an employer's workers communicate with each other in connection with the discipline,

including termination, of a fellow employee.”227 Guardant argues its internal communications

regarding Mr. Carroll’s complained-of comments are conditionally privileged.

Mr. Carroll argues Guardant abused its conditional privilege. “Abuse of a conditional

privilege is indicated when the publication is actuated by malice or negligence, is made for a

purpose other than that for which the privilege is given, or to a person not reasonably believed to

be necessary for the accomplishment of the purpose of the privilege, or included defamatory

matter not reasonably believed to be necessary for the accomplishment of the purpose.”228

Mr. Carroll argues Guardant abused its privilege by publishing statements to Ms. Usilton

and Becky Nagy; Guardant’s investigation “was replete with negligence and malice”; and

material factual disputes regarding what Mr. Carroll said and what “Guardant representatives”

shared with others outside the company preclude summary judgment.

We already addressed comments made outside the company; there is no evidence to

support Mr. Carroll’s assertion. With regard to comments made inside the company, Mr. Carroll

now argues Ms. Usilton testified she did not “recall anything like” an investigation and the

conditional privilege does not apply to her.229 Reading Ms. Usilton’s deposition testimony in

context, she testified she did not recall the word “investigation” being used, but confirmed “we

definitely reached out to the people [reporting Mr. Carroll’s alleged comments] twice, if not

more, to say, you know, “Tell me again, you know, what actually happened. Tell me again what

was actually said.’ . . .”230 There is no dispute Ms. Usilton, as National Sales Director, managed

Mr. Carroll and knew about the comments he allegedly made causing his termination.

Notwithstanding Mr. Carroll’s denial he made the comments at issue, Ms. Usilton knew about

the alleged comments from Ms. Barlow’s reporting to her and from her presence on a call during

which Mr. Collora reported the alleged comments to Vice President of Human Resources

Ms. Merrill. The record shows Ms. Usilton’s involvement in the reporting of Mr. Carroll’s

comments. We see no evidence creating a fact issue on an abuse of the conditional privilege as to

her.

Mr. Carroll next argues Guardant abused its conditional privilege–not in the investigation

of his reported comments—but in text messages between Ms. Usilton and another member of the

sales team in which Ms. Usilton texted, “S***. I talked to Becky.”231 Mr. Carroll argues this text

message evidences the comments falsely attributed to him were published to Becky Nagy, Senior

Director of Medical Affairs at the time, who worked with Mr. Carroll’s sales team. This text

message does not evidence Ms. Usilton conveyed Mr. Carroll’s alleged comments to Ms. Nagy.

When asked about the text at her deposition, Ms. Nagy did not remember talking to Ms. Usilton

about Mr. Carroll; did not express surprise at her name coming up because she worked in the

area of pulmonology where Ms. Usilton had concerns about Mr. Carroll’s performance and Ms.

Nagy offered him training but he turned her down her offer.232 Even if Ms. Usilton

communicated Mr. Carroll’s alleged comments to Ms. Nagy–and there is no evidence she did

so–Mr. Carroll does not provide us with any evidence why it is unreasonable for Ms. Nagy, a

Senior Director of Medical Affairs, to know about Mr. Carroll’s alleged comments.

At summary judgment, Mr. Carroll must demonstrate facts in the record to enable him to

make a sufficient showing of the essential elements of defamation. He failed to do so. We enter

judgment in Guardant’s favor on defamation.

III. Conclusion

Bill Carroll alleges his former employer, Guardant Health, Inc., fired him because of his

age and sex rather than as a disciplinary measure. After oral argument, and considering the

parties’ extensive briefing, we grant in part and deny in part Guardant’s motion for summary

judgment. We deny summary judgment on the age-based disparate treatment claim only, finding

inconsistencies with Guardant’s policies and in its treatment of three younger males who were

disciplined after a more fulsome investigation of physical or verbal harassment of female co-

workers but not fired. Given the considerable deference to Mr. Carroll’s disputed facts at this

stage, we must deny judgment as a matter of law on this one claim.

There are no genuine issues of material fact on his remaining claims and judgment is

warranted as a matter of law. We grant summary judgment in favor of Guardant on Mr.

Carroll’s: hostile work environment, retaliation, and disparate impact claims on the basis of his

age under ADEA; disparate treatment, disparate impact, hostile work environment, and

retaliation claims on the basis of sex under Title VII; and, state law claims of breach of contract,

fraudulent inducement, defamation, and intentional interference with contractual relations.

1 Our Policies require a Statement of Undisputed Material Facts (“SUMF”) and an appendix in

support of summary judgment. Guardant filed its Motion for summary judgment and supporting

memorandum of law at ECF Doc. No. 19-1, its SUMF at ECF Doc. No. 19-4, and appendix at

ECF Doc. No. 19-2. References to the appendix are by Bates number, for example, “1a.”

Mr. Carroll responded to Guardant’s Motion at ECF Doc. No. 21, responded to Guardant’s

SUMF, and provided his own Statement of Undisputed Material Facts (“Carroll SUMF”) at ECF

Doc. No. 21-1. Mr. Carroll’s response to Guardant’s Motion for summary judgment contained a

Rule 56(d) affidavit by his counsel and moved to compel discovery. ECF Doc. No. 21.

Guardant filed a Reply brief and response to Carroll’s SUMF at ECF Doc. Nos. 22, 23.

Mr. Carroll then moved for leave to file a sur-reply (ECF Doc. No. 24) and filed another

Rule 56(d) motion (ECF Doc. No. 25). We ordered Guardant to provide comparator information

sought by Mr. Carroll and allowed the parties to file supplemental briefing. ECF Doc. No. 28.

Mr. Carroll submitted his sur-reply (ECF Doc. No. 30) and Guardant filed a supplemental brief

(ECF Doc. No. 31).We held oral argument on the motion for summary judgment on

December 21, 2020.

We refer to ECF Doc. No. 23 when citing the parties’ statement of undisputed material facts.

Guardant filed ECF Doc. No. 23 in response to Mr. Carroll’s response to its statement of

undisputed material facts and to Mr. Carroll’s statement of additional facts. Mr. Carroll’s

statement of additional facts began numbering at paragraph 1 instead of continuing with

consecutive numbering from Guardant’s statement of undisputed material facts. To minimize

confusion with now two sets of numbered paragraphs, we refer to ECF Doc. No. 23 which is

broken down by section and paragraph number.

2 ECF Doc. No. 23 § Q, ¶ 1.

3 ECF Doc. No. 1 ¶ 23.

4 ECF Doc. No. 23 § Q, ¶ 3.

5 Id. § A, ¶ 1.

6 Id. § Q, ¶¶ 4, 5, 7.

7 Id. § B, ¶ 13; § Q, ¶¶ 6, 9.

8 Id. § Q , ¶ 10.

9 Id.

10 Id.

11 Id. § Q, ¶¶ 11–12.

12 Id. § Q, ¶ 13.

13 ECF Doc. No. 19-2 at 569a.

14 Id. at 570a.

15 Id. at 538a.

16 Id. at 529a–532a.

17 Id. at 531a.

18 Id. at 532a.

19 ECF Doc. No. 23 § B, ¶¶ 12–13.

20 Id. § J, ¶ 74.

21 Id. § D, ¶¶ 20–24. The sales team is comprised of eight positions, but three remained vacant at

the time of Mr. Carroll’s hiring. Guardant planned for Mr. Carroll to begin managing the sales

team in the fall.

22 Id. § D, ¶ 24.

23 Id. § Q, ¶ 16.

24 Id. § D, ¶¶ 26–28.

25 ECF Doc. No. 19-2 at 92a–93a.

26 ECF Doc. No. 19-2 at 92a–93a; ECF Doc. No. 23 § Q, ¶ 26.

27 ECF Doc. No. 19-2 at 93a; ECF Doc. No. 23 § Q, ¶¶ 23–25.

28 ECF Doc. No. 23 § D, ¶ 29. Mr. Carroll denies making this and any of the statements

complained of and contends Ms. Olsen, Mr. Bianco, Ms. Barlow, and Ms. Kiedrowski fabricated

the alleged statements. Id. § D, ¶¶ 29–36.

29 Id. § D, ¶¶ 29–30.

30 Id. § D, ¶ 31.

31 Id. § D, ¶¶ 31, 32, 35.

32 Id. § D, ¶¶ 33, 36.

33 Id. § D, ¶¶ 33–35.

34 Id. § D, ¶ 38.

35 Id. § D, ¶ 36.

36 Id. § D, ¶ 40.

37 ECF Doc. No. 19-2 at 34a-35a, pp. 132-133.

38 ECF Doc. No. 21-2 at 686a. Mr. Carroll interprets the term “Karen” as a pejorative slang term.

According to Dictionary.com, the term “Karen” is “a pejorative slang term for an obnoxious,

angry, entitled, and often racist middle-aged white woman who uses her privilege to get her way

or police other people’s behaviors. As featured in memes, Karen is generally stereotyped as

having a blonde bob haircut, asking to speak to retail and restaurant managers to voice

complaints or make demands, and being an anti-vaxx, Generation X soccer mom. In 2020, Karen

spread as a label used to call out white women who were captured in viral videos engaging in

what are widely seen as racist acts.” https://www.dictionary.com/e/slang/karen/

Urban Dictionary defines the term “Karen” as a “[m]iddle aged woman, typically blonde, makes

solutions to others’ problems an inconvenience to her although she isn’t even remotely affected.”

https://www.urbandictionary.com/define.php?term=Karen.

Guardant offers uncontradicted testimony the “Karen” refers to an employee Karen Burns known

to talk too much among Guardant supervisors. ECF Doc. No. 19-2 at 362a–363a (deposition

testimony of Lesli Kiedrowski at p. 122); ECF Doc. No. 19-2 at 479a–480a (deposition

testimony of Becky Nagy at pp. 102–103).

39 ECF Doc. No. 21-2 at 687a; ECF Doc. No. 23 § Q, ¶ 30.

40 Id. at 674a.

41 Id. at 680a.

42 ECF Doc. No. 23 § G, ¶ 42; ECF Doc. No. 19-2 at 100a, p. 110. Mr. Carroll does not deny

Steven Collora, Danielle Usilton, and Guardant’s human resources managed the investigation but

denies the bona fides of the investigation, calling it a “sham.”

43 ECF Doc. No. 23 § G, ¶ 44; ECF Doc. No. 19-2 at 110a, p. 152.

44 ECF Doc. No. 21-2 at 641a -651a.

45 Id. at 646a.

46 Id. at 647a.

47 Id. at 648a.

48 Id. at 649a.

49 ECF Doc. No. 21-2 at 662a-664a; ECF Doc. No. 30 at 850a, ¶ 5.

50 ECF Doc. No. 21-2 at 662a.

51 Id.

52 Id. at 662a-664a.

53 Id. at 663a.

54 Id. at 652a.

55 ECF Doc. No. 21-2 at 652a-657a.

56 Id. at 658a–661a.

57 ECF Doc. No. 30 at 850a, ¶ 6.

58 ECF Doc. No. 21-2 at 658a–661a.

59 ECF Doc. No. 19-2 at 600a–601a.

60 Id. at 601a, ¶¶ 6–8.

61 Id. at 601a, ¶¶ 6–8. Mr. Carroll concedes Mr. Collora swore to these facts but denies their

accuracy because he lacks information to determine the truth. Mr. Carroll apparently did not

timely pursue discovery on this issue and did not move to compel discovery regarding the female

comparator in two motions to compel discovery after Guardant moved for summary judgment.

See ECF Doc. Nos. 21, 25.

62 Id. at 154a, p. 85.

63 Id. at 205a, p. 97.

64 ECF Doc. No. 23 § G, ¶ 46; ECF Doc. No. 19-2 at 275a, pp. 78–79.

65 ECF Doc. No. 23 § G, ¶¶ 47–50; ECF Doc. No. 19-2 at 108a, pp. 142–144.

66 ECF Doc. No. 19-2 at 232a, pp. 8–9.

67 ECF Doc. No. 23 § G, ¶¶ 53–54.

68 Id. § G, ¶¶ 53–54; ECF Doc. No. 19-2 at 101a-102a, pp. 117–119.

69 ECF Doc. No. 23 § G, ¶ 53.

70 ECF Doc. No. 19-2 at 102a, p. 121.

71 Id. at 102a-103a, pp. 121-123.

72 Id. at 108a.

73 Id.

74 ECF Doc. No. 19-1 at 109a, p. 146.

75 ECF Doc. No. 23 § Q, ¶ 42. Mr. Collora testified he did not keep notes of the investigation.

ECF Doc. No. 19-2 at 113a, p. 162.

76 ECF Doc. No. 23 § Q, ¶ 42.

77 ECF Doc. No. 21-2 at 669a.

78 ECF Doc. No. 23, § L, ¶¶ 88, 90.

79 Id. ¶ 91.

80 ECF Doc. No. 23 § H, ¶¶ 59, 64.

81 Id. § H, ¶ 60.

82 ECF Doc. No. 23 § J, ¶ 75; ECF Doc. No. 30-1 at 850a, ¶ 7.

83 ECF Doc. No. 1 ¶¶ 60, 72(h), 82.

84 ECF Doc. No. 21-2 at 639a.

85 Summary judgment is proper when “the movant shows 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.” Fed. R. Civ.

P. 56(a). “Material facts are those ‘that could affect the outcome’ of the proceeding, and ‘a

dispute about a material fact is ‘genuine’ if the evidence is sufficient to permit a reasonable jury

to return a verdict for the non-moving party.’” Pearson v. Prison Health Serv., 850 F.3d 526, 534

(3d Cir. 2017) (quoting Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). On a motion

for summary judgment, “we view the facts and draw all reasonable inferences in the light most

favorable to the nonmovant.” Pearson, 850 F.3d at 533-34 (3d Cir. 2017) (citing Scott v. Harris,

550 U.S. 372, 378 (2007)). “The party seeking summary judgment ‘has the burden of

demonstrating that the evidentiary record presents no genuine issue of material fact.’” Parkell v.

Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (quoting Willis v. UPMC Children’s Hosp. of Pitt.,

808 F.3d 638, 643 (3d Cir. 2015)). If the movant carries its burden, “the nonmoving party must

identify facts in the record that would enable them to make a sufficient showing on essential

elements of their case for which they have the burden of proof.” Willis, 808 F.3d at 643 (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If, after adequate time for discovery, the

nonmoving party has not met its burden, pursuant to Federal Rule of Civil Procedure 56, the

court must enter summary judgment against the nonmoving party.” Willis, 808 F.3d at 643

(citing Celotex Corp., 477 U.S. at 322-323).

86 We analyze the ADEA and PHRA claims together as both statutes use the same legal standard.

Gress v. Temple Univ. Health Sys., 784 F. App’x 100, 104 (3d Cir. 2019) (citing Glanzman v.

Metropolitan Mgmt. Corp., 391 F.3d 506, 509 n.2 (3d Cir. 2004)).

87 ECF Doc. No. 1 ¶¶ 79–86.

88 29 U.S.C. § 623(a)(1).

89 Willis, 808 F.3d at 644 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009)).

90 Id. (citing McDonnell Douglas, 411 U.S. 792 (1973)). Mr. Carroll’s briefing applies the

McDonnell Douglas burden-shifting analysis to his age claim.

91 Id. (quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999)).

92 Id. (quoting Burton v. Teleflex, Inc., 707 F.3d 417, 426 (3d Cir. 2013)). Our Court of Appeals

recently explained the fourth factor is sometimes phrased as the “adverse action occurred under

circumstances that create an inference that plaintiff's age was a motivating factor” and sometimes

phrased as to require plaintiff to show the plaintiff “was ultimately replaced by another employee

who was sufficiently younger so as to support an inference of a discriminatory motive.” Dodson

v. Coatesville Hosp. Corp., 773 F. App’x 78, 80, n. 3 (3d Cir. 2019) (citing Willis, 808 F.3d at

644). The court explained: “[t]he Willis formulation can be traced back to a case in which we

held that ‘an ADEA plaintiff may establish the fourth element of the McDonnell Douglas test for

a prima facie case by showing that s/he was replaced by a person sufficiently younger to permit

an inference of age discrimination,’” citing Maxfield v. Sinclair Int'l, 766 F.2d 788, 793 (3d Cir.

1985). Replacement by another employee sufficiently younger “is just one way to establish the

fourth element.” Dodson, 773 F. App’x at 80, n.3. “A plaintiff may also establish the fourth

element with proof that, during a reduction in force, younger employees were retained when

plaintiff was fired . . . or with other facts sufficient ‘to create an inference that an employment

decision was based on’ age.” Dodson, 773 F. App’x at 80, n.3 (citing Showalter v. Univ. of

Pittsburgh Med. Ctr., 190 F.3d 231, 234-36 (3d Cir. 1999) and quoting O'Connor v. Consol.

Coin Caterers Corp., 517 U.S. 308, 312 (1996)).

93 Id. (quoting Jones v. Sch. Dist. of Phila., 198 F.3d 403, 412 (3d Cir. 1999)).

94 Burton, 707 F.3d at 426 (quoting Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)).

95 Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 764–65 (3d Cir. 1994)).

96 Fuentes, 32 F.3d at 764.

97 The “same actor” inference allows an employer to argue it did not act with discriminatory

intent where the same person hired and terminated an employee. In Waldron v. SL Indus., Inc.,

56 F.3d 491 (3d Cir. 1995), our Court of Appeals addressed whether it should apply the “same

actor” inference first articulated in a decision by the United States Court of Appeals for the

Fourth Circuit in Proud v. Stone, 945 F.3d 796 (4th Cir. 1991). Our Court of Appeals declined to

adopt such an inference, holding instead to consider the “same actor” who both hired and fired

an employee as “simply evidence like any other and should not be accorded any presumptive

value.” Waldron, 56 F.3d at 496, n.6. Guardant asserts Mr. Collora both hired and fired

Mr. Carroll. ECF Doc. No. 19-4 ¶¶ 10, 64. Mr. Carroll disagrees, asserting both Mr. Collora and

Ms. Usilton hired him. ECF Doc. No. 23 § B, ¶ 10. He does not dispute Mr. Collora fired him.

The record shows Mr. Collora spoke with Ms. Usilton about hiring Mr. Carroll, she thought

Guardant should hire Mr. Carroll, Mr. Collora “supported that hire,” and “ultimately, . . . those

decisions are [his] as the head of the department.” ECF Doc. No. 19-2 at 88a-89a, pp. 65-66.

There is no dispute Ms. Usilton reported to Mr. Collora, and there is no dispute Mr. Collora is

the decisionmaker on hiring “as head of the department.” There is no genuine issue of fact as to

Mr. Collora’s hiring and firing of Mr. Carroll. Consistent with our Court of Appeals, the “same

actor” evidence, “like other evidence in the record, is important but not dispositive.” Wurtz v.

Day and Zimmerman, Inc., No. 08-3503, 2009 WL 2178013, at *4 (E.D. Pa. Dec. 28, 2009).

98 ECF Doc. No. 19-2 at 118a, p. 183.

99 Jeffrey v. Thomas Jefferson Univ. Hosp. Inc., No. 17-0531, 2019 WL 2122989, at *5 (E.D. Pa.

May 14, 2019) (citing Edgerton v. Wilkes-Barre Home Care Services, LLC, 600 F. App’x 856,

858 (3d Cir. 2015)).

100 Guardant’s cite to Joseph v. First Judicial District, No. 97–6703, 1999 WL 79056 (E.D. Pa.

Feb. 2, 1999) is inapposite. Guardant cites Joseph in arguing its replacing Mr. Carroll with the

younger Mr. Liebetreu is insufficient to create an inference of age discrimination. But that is not

the holding of Joseph. The employer there conceded it replaced plaintiff with a younger

employee but argued, unlike here, the employee did not suffer an adverse employment action to

satisfy the prima facie case. Id. at * 3. The court did not resolve the issue, assumed plaintiff

satisfied a prima facie case of age discrimination, and turned to the pretext issue. The court

ultimately found plaintiff failed to meet his burden to show pretext including “the fact that a

younger person was hired to replace [plaintiff], while helpful in establishing a prima facie case

of age discrimination, is not dispositive of whether an employer discriminated based upon age.”

Id. at *5 (emphasis added). Joseph does not support Guardant’s argument at the prima facie

stage.

101 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 509 (1993).

102 Fuentes, 32 F.3d at 763.

103 ECF Doc. No. 19-1 at 9.

104 Fuentes, 32 F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509,

531 (3d Cir. 1992)) (emphasis in original).

105 Ortiz v. Cedar Crest College, 764 F. App’x 257, 259 (3d Cir. 2019) (quoting Burton, 707

F.3d at 427).

106 Wright v. Providence Care Ctr., LLC, 822 F. App’x 85, 92 (3d Cir. 2020) (citing Simpson v.

Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998)).

107 Maull v. Div. of State Police, 39 F. App’x 769, 774 (3d Cir. 2002) (citing English v. Colorado

Dep’t of Corr., 248 F.3d 1002, 1009 (10th Cir. 2001)).

108 Id. (quoting Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995)).

109 Durst v. City of Phila., 798 F. App’x 710, 713 (3d Cir. 2020) (citing Johnson v. Kroger Co.,

319 F.3d 858, 867 (6th Cir. 2003)).

110 Opsatnik v. Norfolk So. Corp., 335 F. App’x 220, 223 (3d Cir. 2009) (quoting Radue v.

Kimberly–Clark Corp., 219 F.3d 612, 617–18 (7th Cir. 2000)); see also Durst, 798 F. App’x at

713 (“[r]elevant factors include whether the comparators had the same supervisor, were subject

to the same standards, and had engaged in similar conduct.”) (citing Johnson, 319 F. 3d at 867)

111 Opsatnik, 335 F. App’x at 223 (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th

Cir. 2006)).

112 Abdul-Latif v. Cnty. of Lancaster, 990 F.Supp.2d 517 (E.D. Pa. 2014) (citations omitted).

113 ECF Doc. No. 21-2 at 662a-664a; ECF Doc. No. 30 at 850a, ¶ 5.

114 ECF Doc. No. 21-2 at 662a-664a.

115 Id. at 652a-657a.

116 ECF Doc. No. 30-1 at 849a-850a, ¶ 4.

117 ECF Doc. No. 21-2 at 652a-657a.

118 Id. at 658a–661a.

119 ECF Doc. No. 30-1 at 850a, ¶ 6.

120 ECF Doc. No. 19-1 at 538a.

121 ECF Doc. No. 21-2 at 652a–657a.

122 Id. at 658a–661a.

123 Id. at 662a–664a.

124 ECF Doc. No. 1 ¶ 82.

125 Power v. Lockheed Martin Corp., 419 F. Supp. 3d 878, 902 (E.D. Pa. 2020) (quoting Howell

v. Millersville Univ. of Pa., 283 F. Supp. 3d 309, 332 (E.D. Pa. 2017)).

126 Wright, 822 F. App’x at 96 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) and Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

127 Harris, 510 U.S. at 21; see also Mazur v. Sw. Veterans Ctr., 803 F. App’x 657, 662 (3d Cir.

2020) (plaintiff’s Title VII hostile work environment fails where stray comments about plaintiff

being “no good” or being “nobody” were neither discriminatory nor severe or pervasive enough

to alter the conditions of employment).

128 ECF Doc. No. 1 ¶ 82.

129 Smith v. N3 Oceanic, Inc., 717 F. App’x 162, 165 (3d Cir. 2017) (citing Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)).

130 ECF Doc. No. 1 ¶ 83.

131 ECF Doc. No. 19-1 at 7–8.

132 Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 69 (3d Cir. 2017).

133 42 U.S.C. § 2000e-2(a)(1).

134 ECF Doc. No. 1 ¶¶ 90-92.

135 ECF Doc. No. 19-1.

136 ECF Doc. No. 21.

137 490 U.S. 228 (1989).

138 Connelly v. Lane Const. Corp., 809 F.3d 780, 787–88 (3d Cir. 2016) (quoting Makky v.

Chertoff, 541 F.3d 205, 213 (3d Cir. 2008)).

139 ECF Doc. No. 19-2 at 118a, pp. 183–184.

140 Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 269 (3d Cir. 2010) (quoting Walden v.

Georgia–Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997)).

141 Id.

142 Id. (internal quotations omitted).

143 Id. (internal citations omitted).

144 Id. (citing Walden, 126 F.3d at 512–13).

145 Robinson v. Nat’l R.R. Passenger Corp., 821 F. App’x 97, 101 (3d Cir. 2020) (citing Jones v.

Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999)).

146 Morgan v. Fiorentino, 811 F. App’x 798, 803 (3d Cir. 2020) (Makky v. Chertoff, 541 F.3d

205, 214 (3d Cir. 2008)).

147 Id.

148 ECF Doc. No. 30 at 7.

149 Although he does not directly address the issue, Mr. Carroll may be attempting to argue

pretext under a “cat’s paw” theory. Under this theory, an employee may hold his employer liable

“for employment discrimination based on the discriminatory animus of an employee who

influenced, but did not make, the ultimate employment decision.” Staub v. Proctor Hosp., 562

U.S. 411, 413 (2011); Kowalski v. Postmaster Gen. of U.S., 811 F. App’x 733, 739 (3d Cir.

2020). Courts may hold an employer liable under the “cat’s paw” theory, where the decision-

maker is free from discriminatory animus but evidence proves another employee, allegedly

motivated by discriminatory animus, influenced the decision to terminate the employee. Ramirez

v. Palmer Twp., 292 F. Supp. 3d 609, 626 (E.D. Pa. 2018) (citing Burlington v. News Corp., 55

F. Supp. 3d 723, 731 (E.D. Pa. 2014)).

A plaintiff “can establish a genuine issue of material fact on a cat’s paw theory of liability if he

establishes that one or more of his nonsupervisory co-workers: (1) performed an act motivated

by discriminatory animus; (2) the act was intended by the co-worker to cause an adverse

employment action; (3) that act is a proximate cause of the ultimate employment action, . . . , and

either (a) defendants acted negligently by allowing the co-worker’s acts to achieve their desired

effect though they knew (or reasonably should have known) of the discriminatory motivation,

. . . or (b) the co-worker was aided in accomplishing the adverse employment action by the

existence of the agency relation.” Burlington, 55 F. Supp. 3d at 738–39 (internal citations and

citations omitted). There is no evidence Ms. Barlow or Ms. Kiedrowski “performed an act

motivated by discriminatory animus”, “the act was intended . . . to cause” Mr. Carroll’s

termination, proximate cause, and Guardant’s negligence “by allowing” Ms. Barlow or

Ms. Kiedrowski’s “acts to achieve their desired effect though [Guardant] knew (or reasonably

should have known) of the discriminatory motivation . . . .” Mr. Carroll points to text messages

and the alleged fabricated comments, but ignores Mr. Bianco, a man, reported the “f***ing

chick” comment and Mr. Collora, a man, investigated the comments and, at the end of the day,

concluded Mr. Collora made the comments complained of. We see no basis for a cat’s paw

theory to create a fact issue on pretext.

150 Fuentes, 32 F.3d at 764.

151 Id. at 765. Mr. Carroll must show Guardant “believed its own investigation into [his] actions

was incorrect and that its real motives were discriminatory. It is not enough for [Mr. Carroll] to

argue [he] did not violate company policy, or that [Guardant’s] investigation into [his] conduct

was flawed. It has been stated that ‘the Court do[es] not sit as a super-personnel department that

reexamines an entity’s business decisions. No matter how medieval a firm’s practice, no matter

how high-handed its decisional process, no matter how mistaken the firm’s managers, the ADEA

does not interfere.” Bloch v. Mack Trucks, Inc., 240 F. Supp. 3d 365, 374 (E.D. Pa. 2017)

(quoting Murphy v. Ctr. for Emergency Med. of W. Pa., 944 F. Supp. 2d 406, 435 (W.D. Pa.

2013)).

152 Frymoyer v. East Penn Mfg. Co., Inc., 757 F. App’x 97, 101 (3d Cir. 2018) (citing Capps v.

Mondelez Glob., LLC, 847 F.3d 144, 152 (3d Cir. 2017)). See also McFalls v. BrightView

Landscapes, LLC, No. 18-2871, 2020 WL 1922828, at * 7 (E.D. Pa. Apr. 21, 2020) (rejecting

argument of inadequate investigation as basis of adverse action) (collecting cases).

153 Id. (quoting Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 262 (3d Cir. 2017) (citation

and quotation marks omitted)).

154 Id.

155 ECF Doc. No. 19-2 at 108a, pp. 142-144.

156 Id. at 275a, pp.78-80.

157 Id. at 154a, p. 85.

158 Id. at 205a, p. 97.

159 ECF Doc. No. 23 § G, ¶ 54.

160 Id. at § G, ¶ 53.

161 ECF Doc. No. 19-2 at 102a, p. 121.

162 Id. at 102a-103a, pp. 121-123.

163 Id. at 108a.

164 Id.

165 ECF Doc. No. 19-2 at 109a, p. 146.

166 Chinery v. Am. Airlines, 778 F. App’x 142, 145 (3d Cir. 2019) (citing Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013)).

167 Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Clark Cnty. Sch.

Dist. v. Breeden, 532 U.S. 268, 270 (2001); Caver v. City of Trenton, 420 F.3d 243, 262-63 (3rd

Cir. 2005); Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017)).

168 ECF Doc. No. 19-2 at 34a-35a, pp. 132-133.

169 Mazur v. Sw. Veterans Ctr., 803 F. App’x 657, 661-62 (3d Cir. 2020) (citing Harris, 510 U.S.

at 21).

170 Abuomar v. Dep’t of Corr., 754 F. App’x 102, 107 (3d Cir. 2018) (quoting Faragher, 524

U.S. at 787-88).

171 Stucke v. City of Phila., 685 F. App’x 150, 154 (3d Cir. 2017) (quoting Faragher, 524 U.S. at

788).

172 ECF Doc. No. 1 ¶ 91.

173 Petti v. Ocean Cty. Bd. of Health, No. 19-2137, 2020 WL 7238410, at *4 (3d Cir. Dec. 9,

2020) (quoting Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006)).

174 ECF Doc. No. 1 ¶ 92.

175 Id.

176 Boyle v. City of Phila., No. 17-262, 2020 WL 4459131, at *4 (E.D. Pa. Aug. 4, 2020)

(quoting Stagi v. Nat'l R.R. Passenger Corp., 391 F. App’x 133, 140 (3d Cir. 2010)).

177 George W. Kistler, Inc. v. O’Brien, 347 A.2d 311, 315 (Pa. 1975) (citations omitted).

178 Id. See also Overseas Strategic Consulting, Ltd. v. Larkins, No. 01–4115, 2001 WL 1198661,

at *4 (E.D. Pa. Oct. 10, 2001) (parties may bind themselves orally even when contemplating a

later written contract but must manifest mutual intent to do so, and there must be agreement on

all aspects of the employment relationship).

179 ECF Doc. No. 23 § C, ¶ 15.

180 Woods v. Era Med LLC, 677 F. Supp. 2d 806, 816 (E.D. Pa. 2010) (quoting Pittsburgh

Constr. Co. v. Griffith, 834 A.2d 572, 580 (Pa. Super. Ct. 2003)).

181 ECF Doc. No. 19-2 at 54a, pp. 209–210.

182 Id. at 54a, p. 211.

183 ECF Doc. No. 23 § C, ¶ 15.

184 Id.

185 George W. Kistler, Inc., 347 A.2d at 315–16.

186 In his response to Guardant’s motion for summary judgment, Mr. Carroll makes a passing

reference to a California choice of law provision in the offer letter. ECF Doc. No. 21 at 19. Mr.

Carroll does not rely on California law and, when asked at oral argument, his counsel admitted

California law did not apply.

187 Deal v. Children’s Hosp. of Phila., 223 A.3d 705, 711 (Pa. Super. Ct. 2019) (citing

McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 286-87 (Pa. 2000); Krolczyk v.

Goddard Systems, Inc., 164 A.3d 521, 527 (Pa. Super. Ct. 2017); Wakeley v. M.J. Brunner, Inc.,

147 A.3d 1, 5 (Pa. Super. Ct. 2016)).

188 Deal, 233 A.3d at 711 (citing Krolczyk, Inc., 164 A.3d at 527; Wakeley, 147 A.3d at 5).

189 Id. (citing Wakeley, 147 A.3d at 5–6).

190 ECF Doc. No. 19-2 at 57a, p. 222. At Mr. Carroll’s deposition, his counsel objected to the

form of the question, “Did you believe you were an at-will employee of Guardant?” as calling

for a legal conclusion. In response to Guardant’s Statement of Undisputed Material Facts, Mr.

Carroll denied his at-will employment status despite his deposition testimony because it is “a

legal conclusion, and not a statement of fact, and was objected to as such by Mr. Carroll’s

counsel and are not admissible in support of a motion for summary judgment as they do not

represent undisputed facts.” ECF Doc. No. 23 § C, ¶ 16.

191 Janis v. AMP, Inc., 856 A.2d 140, 144 (Pa. Super. Ct. 2004) (quoting Rapagnani v. The Judas

Co., 736 A.2d 666, 669 (Pa. Super. Ct. 1999)).

192 Woods, 677 F. Supp. 2d at 817 (citing Scully v. U.S. WATS, Inc., 238 F.3d 497, 505 (3d Cir.

2001)).

193 Id. (citing Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333, 335 (Pa. 1995)).

194 Id. (citing Ruzicki v. Catholic Cemeteries Ass’n of Diocese of Pittsburg, 610 A.2d 495, 497

(Pa. Super. Ct. 1992)).

195 Id. (citing Rapagnani, 736 A.2d at 670–71; Darlington v. Gen. Elec., 504 A.2d 306, 315 (Pa.

Super. Ct. 1986), overruled on other grounds, Krajsa v. Keypunch, Inc., 622 A.2d 355, 360 (Pa.

Super. Ct. 1993)).

196 Id. (quoting DiBonaventura v. Consol. Rail Corp., 539 A.2d 865, 867 (Pa. Super. Ct. 1988)).

197 Id. (quoting DiBonaventura, 539 A.2d at 868).

198 595 A.2d 70 (Pa. Super. Ct. 1991). Mr. Carroll’s brief suggested the offer letter contains a

California choice of law clause. He abandoned this choice of law theory at oral argument.

199 597 A.2d 662, 665 (Pa. Super. Ct. 1991).

200 Woods, 677 F. Supp. 2d at 819.

201 Id. at 820–22.

202 38 F. Supp. 2d 372, 379–80 (E.D. Pa. 1999).

203 Id. See also Preobrazhenskaya v. Mercy Hall Infirmary, 71 F. App’x 936, 940 (3d Cir. 2003)

(citing Darlington, 504 A.2d at 315) (“Leaving one job to take another one has been held to be

‘simply a reasoned choice of a new career goal’ rather than additional consideration implying an

employment contract.”).

204 Haywood v. Univ. of Pittsburgh, 976 F. Supp. 2d 606, 627 (W.D.Pa. 2013) (citing Zaloga v.

Provident Life & Accident Ins. Co. of Am., 671 F. Supp. 2d 623, 630-31 (M.D.Pa. 2009)).

205 Haywood, 976 F. Supp. 2d at 627.

206 Comcast Spectacor L.P. v. Chubb & Son, Inc., 05-1507, 2006 WL 2302686, at *19 (E.D. Pa.

Aug. 8, 2006) (quoting Blue Mountain Mushroom Co., Inc. v. Monterey Mushroom, Inc., 246 F.

Supp. 2d 394, 400-01 (E.D. Pa. 2002)).

207 Pennsylvania v. Navient Corp., 967 F.3d 273, 292, n. 12 (3d Cir. 2020) (quoting Bortz v.

Noon, 729 A.2d 555, 560 (Pa. 1999)).

208 ECF Doc. No. 19-2 at 47a, p. 184.

209 Id. at 70a, pp. 274-75.

210 Id. at 70a, p. 275.

211 ECF Doc. No. 1 ¶¶ 110-115.

212 Burns v. Cooper, No. 2571 EDA 2019, 2020 WL 4592061, at *6 (Pa. Super. Ct. Aug. 11,

2020) (quoting Walnut St. Assoc., Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 98 (Pa. Super.

Ct. 2009), aff’d, 20 A.3d 468 (Pa. 2011)).

213 Id. (quoting Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923, 932-33 (Pa.

Super. Ct. 2013)).

214 Hennessy v. Santiago, 708 A.2d 1269, 1279 (Pa. Super. Ct. 1998); see also Haun v.

Community Health Systems, Inc., 14 A.3d 120, 125 (Pa. Super. Ct. 2011).

215 Ruder v. Pequea Valley Sch. Dist., 790 F. Supp. 2d 377, 395 (E.D. Pa. 2011).

216 Whaumbush v. City of Phila., 747 F. Supp. 2d 505, 513 (E.D. Pa. 2010) (citing Labalokie v.

Capital Area Intermediate Unit, 926 F. Supp. 503, 509 (M.D. Pa. 1996)).

217 Id.

218 Joseph v. Scranton Times L.P., 129 A.3d 404, 424 (Pa. 2015) (quoting 42 Pa. Cons. Stat. Ann.

§ 8343(a)).

219 Id. (quoting 42 Pa. Cons. Stat. Ann. § 8343(b)).

220 ECF Doc. No. 23 § L, ¶¶ 88, 90.

221 Id. ¶ 91.

222 ECF Doc. No. 19-2 at 518a, pp. 12-13.

223 Id. at 505a-507a, pp. 9-17.

224 Id. at 495a-496a, pp. 21-28.

225 Stewart v. SWEPI, LP, 918 F. Supp. 2d 333, 342 (M.D.Pa. 2013) (citing Sobel v. Wingard,

366 Pa. Super. 482, 531 A.2d 520, 522 (Pa. Super. Ct. 1987)).

226 Miketic v. Baron, 675 A.2d 324, 329 (Pa. Super. Ct. 1996) (citing Beckman v. Dunn, 419

A.2d 583, 588 (Pa. Super. Ct. 1980)).

227 Foster v. UPMC South Side Hosp., 2 A.3d 655, 664 (Pa. Super. Ct. 2010) (collecting cases).

228 Moore v. Cobb-Nettleton, 889 A.2d 1262, 1269 (Pa. Super. Ct. 2005) (citing Miketic, 675

A.2d at 329).

229 ECF Doc. No. 19-2 at 148a, p.59.

230 Id. at 148a, pp. 60-61.

231 ECF Doc. No. 21-2 at 669a.

232 ECF Doc. No. 19-2 at 477a-478a, pp. 93-94.