MANGOLD v. PECO ENERGY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________________

:

DAVID G. MANGOLD, : CIVIL ACTION

:

Plaintiff, :

:

v. : No. 19-5912

:

PECO ENERGY, :

:

Defendant. :

____________________________________________:

Goldberg, J. December 23, 2021

MEMORANDUM OPINION

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

Accelerated Workplace Diversification (“AWD”) program in an effort to increase the diversity of its

workforce. Plaintiff David Mangold, a white male who worked for PECO, contends that, as a result of

this program, he was discriminated against and constructively terminated from his position. He brings

claims against Defendant pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act (“Title VII”),

and the Pennsylvania Human Relations Act (“PHRA”).

Defendant seeks summary judgment on the entirety of Plaintiff’s Complaint. For the following

reasons, I will grant Defendant’s Motion and enter summary judgment in favor of Defendant.

I. STATEMENT OF FACTS

Unless so indicated, the following facts are uncontested.1

1 My Policies and Procedures provide that “[t]he papers opposing a motion for summary judgment

shall include as a separate exhibit a short and concise statement of the material facts, which respondent

contends present genuine issues for trial. The statement should respond to the numbered paragraphs set

forth in the moving party’s Statement of Undisputed Facts. The responding party shall also set forth, in

separated numbered paragraphs, any additional facts which the respondent contends preclude summary

judgment. The Court will accept all material facts set forth in the moving party’s statement as admitted

unless controverted by the opposing party.” (J. Goldberg’s Policies and Procedures ¶ 12.)

Here, Defendant submitted a forty-nine page Statement of Undisputed Facts containing well over

four hundred paragraphs. Notwithstanding the unwieldy and excessive length of this Statement, Plaintiff

A. The Parties

PECO Energy Company (“PECO”) is an energy services company that constitutes

Pennsylvania’s largest electric and natural gas utility. It is an indirect subsidiary of Exelon Corporation

(“Exelon”), an energy services company headquartered in Pennsylvania.

Plaintiff, a white male, worked as a Senior Business Analyst for PECO’s Marketing Services

department from November 24, 2014 to the date of his resignation on February 26, 2018. (Def.’s Ex.

1.) Prior to working as a PECO employee, Plaintiff was employed by Calico Energy, and then worked

as a contingent worker/contractor for PECO from July 2013 until he became a full-time Senior Business

Analyst. (Def.’s Ex. 2, Dep. of David Mangold (“Mangold Dep.”), Day One, 84:18–87:01.)

B. Other Individuals Employed by PECO

As this case centers on the interactions between Plaintiff and both his supervisors and members

of Human Resources, some understanding of the other individuals involved is helpful.

1. Plaintiff’s Supervisors

During his tenure at PECO, Plaintiff reported to or worked with several other individuals,

including Paul Miles, a white male to whom he directly reported. (Id. at 124:16–24.) Plaintiff also

received feedback from other peer managers including Vien Cash (Asian female) and Kathleen

MacWilliams (white female). (Id. at 62:20–63:4.)

Mr. Miles reported to Sabrina Brooks (black female), who was the Senior Manager of the

Marketing Department. (Def.’s Ex. 2, Mangold Dep., Day Two, 179:18–24; Def.’s Ex. 4, Dep. of

disregarded my Policies and Procedures and failed to either respond to that statement or provide a

counter-statement of facts. Indeed, Plaintiff offered only a non-numbered recitation of facts at the outset

of his Response to the Motion for Summary Judgment. Many of these “facts” contain no citation to any

evidence of record.

Given these circumstances, crafting a complete yet concise statement of facts for purposes of

this opinion has been challenging to say the least. Nonetheless, and pursuant to my Policies and

Procedures, to the extent the enumerated facts in Defendant’s Statement are supported by the cited

evidence, and not contradicted by evidence proffered by Plaintiff, I will deem them admitted. Although

I also consider Plaintiff’s non-numbered recitation of facts in his brief, I will only accept such facts to

the extent they are supported by reference to a specific exhibit.

Sabrina Brooks (“Brooks Dep.”), 12:8—20.) Aside from Mr. Miles, four other managers reported to Ms.

Brooks: Michael O’Leary (white male), Liz Finocchio (white female), Kathleen Williams (white

female), and Vien Cash (Asian female). (Brooks Dep. 14:2—24.)

Ms. Brooks reported to Kathleen Lentini (white female), who was Director of Energy and

Marketing Services. (Brooks Dep. 13:1—25; Def.’s Ex. 5, Dep. of Kathleen Lentini (“Lentini Dep.”)

19:4-7.) Five other managers reported to Ms. Lentini, including Sharon Simpson, Ramesh Santana

Christian, Jim Reilly, Phil Eastman, and Nick DiDomenicus. (Lentini Dep. 19:16—-19.)

Ms. Lentini reported to Anthony (Tony) Gay, a black male, who was the Vice President of

External and Governmental Affairs. (Lentini Dep. 69:1—5; Def.’s Ex. 6, Dep. of Anthony Gay (“Gay

Dep.”) 14:15—25.) Mr. Gay, in turn, reported to Elizabeth Murphy (white female) who was Senior Vice

President of the Division. (Gay Dep. 13:2-12.)

To summarize the relevant chain of command:

Murphy (white female)

Tony Gay (black male)

Kathleen Lentini (white female)

f... Brooks (black female)

Miles (white male)

Plaintiff (white male)

2. Human Resources and Security Personnel

Mary Krick (white female) was the Vice President, Chief Human Resources Officer at PECO

during the time period relevant to this case. (Def.’s Ex. 7, Dep. of Mary Krick (“Krick Dep.) 14:22-

15:1.) In that position, she reported directly to Amy Best (white female), Chief Human Resources

Officer of Exelon. (Id. at 15:16:2.) Ms. Krick, in turn, reported to Christopher Smith (white male), the

Human Resources Business Partner who supported Human Resources functions for External and

Governmental Affairs. (Id. at 16:23–17:20.) Mr. Smith was hired at PECO in 2016 and promoted to

Principal HR Business Partner in January 2020. (Def.’s Ex. 8, Dep. of Christopher Smith (“Smith

Dep.”), 53:13–22.)

Michael Melvin (white male) served as Senior Manager of PECO Security. (Def.’s Ex. 9, Dep.

of Michael Melvin (“Melvin Dep.”), 11:1–21.) In 2018, Mr. Melvin was promoted to Director, Security

Programs and Compliance for Exelon Utilities, a subsidiary of Exelon Corporation. (Id.)

Thomas Marshall (white male) is currently employed as a Senior Manager of Corporate Security

at PECO, a position to which he was promoted in 2018, as Mr. Melvin’s replacement. (Def.’s Ex. 10,

Dep. of Thomas Marshall (“Marshall Dep.”), 12:6–13:16.) He was originally hired as an investigator,

then was promoted to security manager reporting to Mr. Melvin. (Id. at 13:8–23.) Lou DeShullo (white

male) worked for Mr. Marshall in Corporate Security. (Id. at 94:18–95:23.)

C. PECO’s Affirmative Action Programs

As a federal contractor, Exelon, Defendant’s parent company, is required to take affirmative

action to recruit and advance qualified minorities, women, persons with disabilities, and covered

veterans. 30 F.R. 12319 (Sept. 24, 1965), as amended by Exec Order No. 11375, 32 F.R. 14303 (Oct.

13, 1967); (Def.’s Ex. 22.) Under Exelon’s Federal Affirmative Action Plan (“FAAP”) agreements with

the U.S. Department of Labor’s Office of Federal Contract Compliance Programs, Exelon was required

to examine and ensure that its personnel practices would allow equal employment opportunity for

applicants. (Def.’s Ex. 23.) Neither Plaintiff’s position nor any position within the External and

Governmental Affairs division were listed as subject to an FAAP during the time that Plaintiff worked

for Defendant. (Def.’s Ex. 24; Krick Dep. at 55:1–56:3.)

As part of its obligations, Exelon incorporated diversity and inclusion standards into its Exelon

Code of Business Conduct (“COBC”). (Def.’s Exs. 25, 26, 28.) In 2015, Defendant determined that

there were still critical gaps in the areas of hiring and retention of diverse employees and sought to

implement a plan to increase the diversity of its workforce. (Def.’s Ex. 27.) In an original draft

presentation of Defendant’s plan, the Accelerated Workforce Diversification (“AWD”) Program,

Defendant included one slide describing “[a]n aggressive scenario aiming to achieve 50% diversity

within five years using the Nuclear business as an example.” (Def.’s Ex. 29, at p. 15.) This scenario

“require[d] a significant swap of non-diverse employees with diverse employees on an annual basis for

five years.” (Id.) It further noted that “[a] change of this magnitude would require additional actions to

create space for 750 diverse new hires as the normal rate of attrition alone does not create sufficient

opportunity.” (Id.)

According to Nicole Durham, the Vice President, Diversity & Inclusion for Defendant,

Defendant “knew that this type of aggressive approach would not be practical or legal and [Defendant

was] never planning to adopt it.” (Def.’s Ex. 28, ¶ 20.) Ms. Durham explained that this slide was

designed “for illustrative purposes” and the final Executive presentation circulated on July 24, 2015

neither included this slide nor made any reference to changing current white male headcounts. (Id. ¶¶

21, 23.) Indeed, Exelon ultimately adopted a more measured approach that “simply required intentional

focus on creating a diverse slate of candidates, while remaining equitable and ensuring a competitive

process.” (Id. ¶ 22.) More specifically, Defendant created a goal of achieving a seven percent increase

in diverse headcount over five years by increasing the flow of diverse talent coming into the company,

improving development and advancement strategies, and improving retention strategies. (Def.’s Ex. 27

at 3.) This goal was framed by the legal principle of “recruiting a pool of diverse candidates and hiring,

promoting, and retaining the best qualified candidate without regard to race/gender.” (Id. at 4.)

On November 30, 2015, Chris Cane, the white male CEO of Exelon, issued the following

message to all employees regarding the upcoming launch of Exelon’s AWD initiative:

As you known Exelon’s footprint extends across the nation, reaching a customer

base that is rich in diversity. And, as a major service provider, we need to ensure

that our organization represents the communities we serve. I believe that we

have the opportunity to leverage our diversity beyond our bottom line.

Employment within the Exelon family of companies enables individuals and

families to build legacies of personal wealth and quality education for their

children. This creates greater sustainability for our company and, importantly,

allows us to change lives.

Our diverse workforce and inclusive leadership enable our business success.

Though we have made some progress in improving our diversity and inclusion

in recent years there is more work to be done. I am challenging every part of

the organization to drive an increase in our diverse headcount of at least 7

percent enterprise-wide by the year 2020. We will begin measuring progress

against this goal in January 2016. To make this goal, we must continue to attract

diverse talent to Exelon, but also to retain it.

Meaningful progress will require dedicated support and continuous engagement

by all executives and their leadership teams, in partnership with Human

Resources. As you complete the 2015 performance assessment process within

your organizations, pay close attention to each leader’s contribution to D&I

[diversity and inclusion] within Exelon. Some leaders may have done

extraordinary outreach to diverse candidates and improved our hiring success.

Others may have served as a mentor or are actively participating in one of our

ERGs. These examples demonstrate our willingness to move the company

forward, and must be factored into each executive’s performance.

(Def.’s Ex. 30 (emphasis in original).)

As a follow-up, Exelon Senior Vice President and Chief Human Resources Officer, Amy Best,

issued another message to leaders regarding the initiative. (Def.’s Ex. 31.) She commented that “we

have a goal of increasing our diverse talent headcount by at least 7 percent by the year 2020. To build

sustainable progress in this area, it is expected that D&I performance will be integrated into performance

evaluations for all executives. Performance should not be solely focused on quantitative hiring or

headcount metrics but also on qualitative leadership behaviors.” (Id.) Ms. Best clarified that the AWD

initiative focused not just on race, but on gender, ethnicity, sexual orientation, people with disabilities,

and veterans. (Id.)

Nonetheless, in the years following the AWD rollout, the white male population at Exelon

remained relatively unchanged, and PECO has never met the AWD goal. (Def.’s Exs. 32, 33.) Ms.

Krick, Chief Human Resources Officer, explained that she has never been penalized either financially

or in her performance evaluations for not meeting this goal. (Krick Dep. 80:12–21.) She testified that

the AWD was an initiative that put together “an aspirational goal to look at ways to better diversify the

workforce, and it was primarily focused on how we are working in the community and how we are

recruiting across the communities in which we do business and are we creating an equal or level playing

field for applicants for opportunities as they become available across Exelon.” (Id. at 28:1–7.) The

white male headcount at PECO was higher from 2017–2019 than it was in 2016 when AWD was

announced. (Def.’s Ex. 34.)

Following the implementation of this program, an employee named Fred Kirschbaum, a former

Senior Recruiter in Defendant’s Human Resources department, filed a complaint in federal court

alleging that “[a]s part of the AWD goals, all Recruiters were required to consider the race and ethnicity

of an applicant during the hiring process. Furthermore, in order to achieve an increase in diversity of

7%, over 70% of all external hires had to be diverse candidates, and the Respondent would have to

terminate currently employed Caucasian males.” (Pl.’s Ex. K.) Furthermore, Mr. Kirschbaum asserted

that all Vice Presidents were required to achieve the AWD goal as a “tier one” financial goal, and if said

goal was not met, monetary penalties would result. (Id.) Prior to discovery or any dispositive motions

being filed in the case, the parties resolved this matter. Kirschbaum v. PECO, 18-cv-3750 (E.D. Pa.)

In June of 2017, PECO implemented the “The White Men and Allies Learning Lab,” which was

training for the senior management team across all of Exelon. (Pl.’s Ex. B, Mangold Dep., 24:19–25:5.)

Ms. Krick explained that it was a three-day training regarding race and gender to foster discussion about

people’s experiences in different groups, i.e. what it is like to be a white female or black male, etc. (Id.

at 26:12–24.) The Lab resulted in a summary document, which was created as a reflection of the lab

experience and which summarized some of the discussions that occurred. The document contained lists,

as generated by the participants, of hopes, concerns, courage statements, assumptions about white men,

assumptions about men of color, assumptions about women of color, impacts of white male culture on

various groups, and questions for various groups. (Pl.’s Ex. D.)

C. Plaintiff’s Claims of Discrimination

1. The February 2018 Incident

In late 2017, Plaintiff received a “Limited Impact” performance rating (the lowest possible) on

his annual review. (Pl.’s Ex. E, Dep. of Paul Miles (“Miles Dep.”), 53:23–54:3.) Plaintiff’s manager,

Mr. Miles, testified that a limited impact rating is given after everyone who works with an employee

weighs in on their specific experiences, and then Ms. Brooks, the Senior Manager of the Marketing

Department, approves the rating. (Id. at 70:15–20, 72:9–14.) Mr. Miles indicated that although he

advocated for Plaintiff to receive a higher rating, others saw things differently. (Id. at 74:18–75:4.)

Nonetheless, Miles explained that, after attending the meeting with other supervisors, the decision was

made objectively based on Plaintiff’s behaviors and it was “almost impossible to defend against the

decision that was made.” (Id. at 76:10–78:2.)

Sometime in the afternoon of February 13, 2018, months after the issuance of the performance

rating, Plaintiff requested a meeting with Ms. Brooks to discuss the rating. (Def.’s Ex. 42.) Ms. Brooks

testified that the meeting was unscheduled, odd, and definitely out of the ordinary. (Def.’s Ex. 4, Dep.

of Sabrina Brooks (“Brooks Dep.”), 168:1–25.) Indeed, Plaintiff admitted that in the three years he

worked with Ms. Brooks, he only met with her in her office “once, maybe twice.” (Def.’s Ex. 2, Mangold

Dep., Day 2, 37:19–38:03.)2 In the entire time Brooks had been with the company to date, no other

employee had asked to talk to her about their rating. (Id. at 119:15–17, 179:18–180:8.)

When Plaintiff came into Ms. Brooks’s office, he was holding papers, which he placed on her

table. She noted that he was fidgeting a bit. (Id. at 76:8–16.) He then asked if she followed QAnon, a

known conspiracy theory group. (Id. at 76:17–77:12.) Plaintiff told her that this group talked in codes

on the Internet and revealed secrets about the government if you could decipher the codes. (Id. at 77:16–

2 Plaintiff and Defendant use two different versions of Plaintiff’s deposition with different

pagination. Each party references their own pagination when citing the deposition, making it almost

impossible for me to cite to one version of the deposition. Accordingly, for purposes of clarity, I will

cite to the version of Plaintiff’s deposition applicable when referring to a particular fact.

24.) At that point, Plaintiff was sitting and wringing his hands, and Ms. Brooks asked what else was

going on. (Id. at 80:18–20.) Plaintiff indicated that he had a really tough year in his job in 2017 and

that he wanted to “play a game” with her. (80:21–81:6.) When Ms. Brooks asked him to please talk to

her about his concerns, he declined to tell her and instead gave her the papers he had brought in and

asked her to decipher the codes written on them. (Id. at 81:10–17.) At that point, she said “okay”

because she did not want to continue the conversation. (Id. at 82:5–11.) He then said that, to get her

started with the game, he was going to give her three clues: VC equals Vien Cash; KM is Kathy

MacWilliams, and LN is Lou Naylor. (Id. at 82:9–15.) He indicated that he was leaving for a business

meeting and then going on vacation, and then he got up, left the papers with the codes, and walked out

of her office. (Id. at 82:16–83:2.)

Plaintiff’s version of the meeting was somewhat different. He said that he went into the meeting

with the codes because he did not want her to “take things wrong” and wanted to “have a fun time” to

explain what was on his mind. (Pl.’s Ex. H, Mangold Dep., 372:10–21, 417:1–15.) Plaintiff explained

that when she did not understand what was going on “from the get-go,” he switched gears right away

and intended to talk about the “timeline.” (Id. at 417:1–15) Plaintiff testified that they “had a very

pleasant conversation” that ended abruptly when she had to get on another call, and because of his

upcoming travel, they never had a chance to finish their conversation. (Id. at 431:2–13.) During the

conversation, Plaintiff stated that he told Ms. Brooks about his dog rescuing, jogging, that he was a

Trump supporter and wanted to get a job in Washington, and that, in his spare time, he was a conspiracy

researcher looking into QAnon. (Id. at 432:12–433:22.) Plaintiff denied ever saying the phrase “play a

game” and claimed the codes were more of an exercise. (Id. at 415:5–8.)

Just after the meeting, Ms. Brooks reported this conversation to Christopher Smith in Human

Resources, who stated, “we’ll talk to [Plaintiff] when he gets back to the office.” (Brooks Dep. 103:10–

17.) Ms. Brooks then called Ms. Lentini and said that she had just had a meeting with Plaintiff that

“kind of spooked her.” (Def.’s Ex. 5, Dep. of Kathleen Lentini (“Lentini Dep.”) 12:12–17.) Ms. Brooks

shared the paper with the codes on it with Ms. Lentini, Director of Energy and Marketing Services. (Id.)

The following morning, Ms. Brooks reported her interaction with Plaintiff to Mike Melvin, the

manager/director of PECO security. (Brooks Dep. 107:17–108:5.) Ms. Brooks described the meeting

with Plaintiff and provided Mr. Melvin with copies of the codes that Plaintiff had given to her. (Id. at

109:8–17.) Mr. Melvin recalled that Ms. Brooks was “visibly shaken,” was crying, and was expressing

her concern for other employees. (Def.’s Ex. 9, Dep. of Michael Melvin (“Melvin Dep.), 73:22–7.) Mr.

Melvin then related these events to Tom Marshall and assigned him as the lead investigator. (Id. at

22:11-16.)

In her deposition, Ms. Brooks explained that the meeting felt threatening because, “[t]hese are

people on my team that he had a direct conflict with, so, yes, I felt threatened by that, because, although

he didn’t say anything personally threatening to me, he talked about people that he had disagreements

with, so that was threatening.” (Brooks Dep. 89:12–17.) She elaborated that the meeting made her

“extremely nervous because, again, there have been a number of incidents going on in our country with

workplace violence and, at that time, I didn’t know what was going on. David had never come across

as being someone that would do that, but who does? The fact that we had this exchange was very un-

nerving to me, extremely.” (Id. at 98:16–23.)

Because Plaintiff was out of the office on vacation until February 26, 2018, Security could not

interview him until his return. (Def.’s Ex. 42.) In the interim, Security contacted Joseph Orenstein, an

Intelligence Analyst with Defendant, and requested assistance regarding Plaintiff’s codes, a review of

his social media, and a review of his network access. Mr. Orenstein found no Exelon network-based

communications of concern, identified no derogatory information on Plaintiff’s social media accounts,

and was able to decipher some of the codes. (Def.’s Ex. 47.)

On February 26, 2018, two members of PECO Security, Tom Marshall and Lou Deshullo

interviewed Plaintiff. (Def.’s Ex. 42, 48.) The interview began at about 8:15 a.m. and lasted

approximately one hour. (Melvin Dep. 40:11–22.) Mr. Melvin was present at the beginning of the

interview but not for the duration. (Id. at 34:2–5.) He testified that, before the interview began, Plaintiff

slid his company ID, key to his desk, and company credit card over to him. (Id. at 34:20–23.) Mr.

Melvin slid these items back to Plaintiff and told him that they were just there to interview him about

his meeting with Ms. Brooks. (Id. at 34:24–35:3.)

According to the Security Investigation report, Plaintiff described to the Security officers his

understanding of the events in question. He indicated that, on December 28, 2017, he had a meeting

with Mr. Miles to discuss his “Limited Impact” rating, and Mr. Miles communicated that the rating

decision was made by other PECO Marketing Management peers because of “terse emails” that Plaintiff

sent throughout the year. (Def.’s Ex. 42) Plaintiff remarked that Mr. Miles told him that he felt Plaintiff

deserved an “Extraordinary Impact” rating, the highest an employee could achieve. Accordingly,

Plaintiff decided to speak with Ms Brooks since he liked her, wanted to “clear the air” regarding his

perceived poor performance, and believed he could help correct the team’s opinion of him. (Id.)

Initially, in his description of the meeting, Plaintiff denied any knowledge of offering to “play a

game” with Ms. Brooks or providing her with a sheet of codes, but, when investigators reminded him of

his duty to answer questions honestly, Plaintiff admitted that he provided Ms. Brooks with a copy of

codes, stating it would be the best way to describe what was on his mind. (Id.) Plaintiff then explained

that he was recently certified as a Scrum Master—a form of IT software project manager related to work

efficiency—and that, during his certification courses, the instructor would play games involving code

breaking, which Plaintiff believed would be an effective platform to share his feelings with Ms. Brooks.

(Id.) When investigators indicated that Ms. Brooks felt threatened, he clarified that he did not mean to

upset her or threaten anyone else. (Id.) He also deciphered each code, which described details and

projects associated with his work product throughout the year. (Id.) Plaintiff then stated that he believed

PECO undervalued his work product and as a result of that fact, as well as the pending investigation, he

planned to return home to Wisconsin within the next few weeks. (Id.) Plaintiff also apologized for his

actions, stating that, in hindsight, he understood how they could be perceived as threatening. (Id.)

In his deposition, Plaintiff offered a different version regarding the interview. He claimed that

the Security investigators that questioned him asked him to resign a number of times, giving him fifteen

minutes to decide. (Def.’s Ex. H, 88:14–89:5.) Indeed, Plaintiff remarked that throughout the whole

investigation, he was given multiple opportunities to quit, and the investigators wanted to get his

resignation, promising that it would be on good terms. (Id. at 482:19–484:23.) Plaintiff refused to resign

since “this was his career.” (Id. at 621:4–24.) Plaintiff also stated that the interviewers insulted him by

asking “Wanna play a game?” and “You’re a smart guy. Why would you do something so stupid.” (Id.

at 397:21–24.) Ultimately, at the end of the interview, Plaintiff was given a document to sign, which he

believed was inaccurate, but felt that he was under duress to sign. (Id. at 395:5–398:16.)

At around 9:30 a.m. that same day, just after the interview with Plaintiff was complete, Mr.

Melvin and Mr. Marshall held a second meeting with PECO Human Resources, Ms. Lentini, and Ms.

Brooks. (Def.’s Ex. 49, 55, 56, 57.) At that time, Mr. Melvin and Mr. Marshall informed the attendees

that, based on the interview with Plaintiff, they did not believe that Plaintiff was threatening Ms. Brooks

with his codes. (Melvin Dep. 38:2–39:20; Marshall Dep. 41:13–43:17.) None of the attendees expressed

any desire that Plaintiff be terminated. (Melvin Dep. 79:7–80:8.) Indeed, Mr. Marshall indicated that

he did not make any recommendations about the outcome. (Marshall Dep. 43:18–20.)

Following that meeting, and again on the same day, Human Resources decided that Plaintiff

should be relieved of duties with pay pending completion of the investigation. (Smith Dep. 37:13–

38:15.) Mr. Melvin testified that this was normal practice with respect to an open investigation. (Melvin

Dep. 41:3–9.) Cognizant that this letter was being drafted, Mr. Melvin returned to Plaintiff and told him

“Hey, HR is going to be down to talk to you. I don’t know if that’s going to be in ten minutes, 15

minutes . . . We’re going to be in our staff meeting. Again, you can hang here. You know, if you’d

prefer to hang in the lobby of the building or out front, you know, wherever, just you have to be readily

available to us when HR comes down . . .” (Melvin Dep. 41:10–21.) Shortly thereafter, Mr. Smith of

Human Resources provided Plaintiff with the letter advising that he was relieved of duties pending the

outcome of the investigation. Mr. Smith collected Plaintiff’s badge, company credit card, and desk key,

which is standard practice. (Id. at 44:6–13.) Mr. Melvin then walked Plaintiff out of the building, told

him that this was a pending investigation and no formal decision had been made, and advised him not

to complicate the matter by returning at this point. (Id. at 44:17–45:24.) At 11:35 a.m., Mr. Smith sent

an email to the attendees of the Human Resources meeting advising of the events. (Def.’s Ex. 58.)

Plaintiff testified, however, that Security “asked [him] to resign,” and he felt pressured to do so

because otherwise he would not be able to leave on good terms. (Pl.’s Ex. H, 716:18–717:4.) He

explained that:

So I guess my termination was a foregone conclusion based upon the

treatment by security. They interrogated me like a criminal. They called

me creepy, not interested in anything I wrote down on my outline. They

assumed my guilt from the very beginning and given—they were giving

me opportunities to resign instead of get to the truth. If they were really

doing a security investigation, would they do any of this stuff? I was

escorted out of the building like a criminal. I was given a note saying I

wasn’t allowed to go on PECO property. I had no job left. I had no

corporate identity. I had no card. I had nothing. And I had what I would

say is important work still to do. I guess—there was no way for me to

stay on good terms and the writing was on the wall, so that’s—no doubt

in my mind that’s a discharge or termination as a matter of law.

(Pl.’s Ex. H, 719:1–20.)

Security interviewed Plaintiff’s supervisor, Paul Miles, the next day, and he told Security that,

just prior to this interview, he received a voicemail from Plaintiff stating that Plaintiff resigned from his

position. (Def.’s Ex. 42.) Mr. Miles then told Security that Plaintiff was “wound really tight,” struggled

to get along with his peers, and had an inflated perception of his value to the company, but Mr. Miles

did not believe Plaintiff was a violent person. (Id.) Mr. Miles also stated that Plaintiff required a lot of

personal management to complete his tasks. (Id.) He explained that when he delivered Plaintiff’s poor

year-end review, Plaintiff originally did not appear overly upset, but later began writing “parables” to

Mr. Miles to express his feelings. (Id.) Mr. Miles also remarked that Plaintiff would often react

viscerally to team members through email, which was upsetting to those other employees. (Id.) Finally,

Mr. Miles stated that, approximately six months ago, Plaintiff had expressed his interest in changing

jobs to become a software developer. (Id.)

Security subsequently drafted a summary report of its investigation concluding that Plaintiff had

not engaged in workplace violence or threats. (Melvin Dep. 66:3–5.) As noted, however, Plaintiff had

already resigned.

In his deposition, Plaintiff claimed that he quit because:

I was forced to—I was forced to quit because if I didn’t, I very much believe that

they would find that I—through their sham of an investigation, that they were

going to find me as a violent white supremacist racist, and I couldn’t afford to

have that attached to me. . . . I wanted to keep working for Exelon. I wanted to

get a job of a—somebody I worked with in 2008, when they retired, and so I

wanted to leave on good terms, and I was forced out . . . . [I quit] because they

investigated me right and left, they gave me a—some sort of confession to sign

to keep my job, and security asked me to resign, they folded their arms, all three

of them, they said they were going to give me 15 minutes to decide . . . So at the

end of the day, after I was told that I could quit on good terms, I—instead of

being called a white racist for the rest of my life, have that attached to me, and

to be able to continue to work for Exelon I hoped back at ComEd, I answered

Chris’ email, “I’m out.”

(Def.’s Ex. 2, Mangold Dep., Day One, 87:2–90:6.)

When asked why he believed the company would find that he was a “violent white supremacist

racist,” Plaintiff explained that he had had a conversation with Ms. Brooks where he brought up the fact

that he was a Trump supporter and was interested in the QAnon phenomenon. Based on his volunteered

statements, he “conclude[ed] that because I—given PECO’s obvious toxic culture against white males,

that Sabrina had to know that she would be believed above me, especially as a supervisor and a black

female supervisor at that, and that my leaving would help with their diversity goals. (Id. at 92:1–13.)

Plaintiff went on to testify that the people investigating him had “confirmation bias” and all wanted him

to be guilty because of the accelerated workforce diversification and the fact that his leaving would help

the diversity numbers. (Id. at 95:17–96:5.)

2. EEOC Charge

On September 21, 2018, Plaintiff filed a charge with the Equal Employment Opportunity

Commission (“EEOC”) asserting that he “believe[d] [he] was discriminated against on the basis of my

race plus sex (White male), in that I was paid a lower annual bonus and was discharged from

employment, in violation of Title VII of the Civil Rights Act of 1964, as amended.” (Def.’s Ex. 12.)

He indicated that two women in his department “micro-aggressed” against him and were working

together. The two female mangers decided to “downgrade” him, costing him $3,500 of his bonus, and

directors did not defend him appropriately. (Def.’s Ex. 13.) Plaintiff also alleged that in 2016, PECO

rolled out the Accelerated Workforce Diversification (“AWD”) which gives vice-presidents a higher

bonus if they get more diverse employees. (Id.) He asserted that AWD was “clearly a rogue program

that MUST by definition, get rid of your white, male workforce, the VP’s bonus depends on it! I believe

the managers were IN on getting me fired, discrediting my good work, and helping their ‘diversity’

challenge.” (Id.) Finally, Plaintiff asserted that his separation occurred “when the department head, an

African American woman, took a personal note I had with me (was unintelligible to anyone but myself)

and gave it to corporate security, who called it creepy and thought it contained a threat – well there was

no threat, it’s all garbage. . . . Big picture – 3 females conspired against me, and my direct boss, a coward,

did nothing to defend me.” (Id.)

Plaintiff then filed a second statement with the EEOC. He remarked that Paul Miles’s “claims

of my poor performance and work behavior is nothing more than Symantec backfill to try to explain the

sudden change in attitude towards me, which is only explainable in seeing an opportunity to weaken,

shame, and get rid of another white male so the VP can make his diversity quota and therefore claim his

big payday when the bonus money is paid in.” (Def.’s Ex. 14.) Plaintiff subsequently filed an Amended

Charge with the EEOC, adding a retaliation claim. (Def.’s Ex. 15.) He alleged that “I complained of

race and sex discrimination to my boss and nothing was done about it. I believe one reason I was

terminated was because I complained of discrimination.” (Id.)

The EEOC closed its investigation on September 18, 2019. It then advised Plaintiff that it was

“unable to conclude that the information obtained establishes violations of the statutes.” (Def.’s Ex. 17.)

D. Procedural History

On December 16, 2019, Plaintiff filed a Complaint against Defendant setting forth claims of

discrimination under 42 U.S.C. § 1981, Title VII of the Civil Rights Act, and the Pennsylvania Human

Relations Act. Following discovery, Defendant moved for summary judgment on all claims.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 states, in pertinent part:

A party may move for summary judgment, identifying each claim or defense—

or the part of each claim or defense—on which summary judgment is sought.

The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law. The court should state on the record the reasons for granting or

denying the motion.

Fed. R. Civ. P. 56(a). “Through summary adjudication, the court may dispose of those claims that do

not present a ‘genuine dispute as to any material fact’ and for which a jury trial would be an empty and

unnecessary formality.” Capitol Presort Servs., LLC v. XL Health Corp., 175 F. Supp. 3d 430, 433

(M.D. Pa. 2016). A factual dispute is “material” if it might affect the outcome of the suit under the

applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is “genuine” only

if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for

the non-moving party. Id.

The initial burden is on the moving party to adduce evidence illustrating a lack of genuine, triable

issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). Once the moving party

satisfies its burden, the non-moving party must present sufficient evidence of a genuine issue in

rebuttal. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015). The court must resolve all doubts as to

the existence of a genuine issue of material fact in favor of the non-moving party. Saldana v. Kmart

Corp, 260 F.3d 228, 232 (3d Cir. 2001). Unsubstantiated arguments made in briefs are not considered

evidence of asserted facts. Versarge v. Twp. of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993).

III. DISCUSSION

Plaintiff brings claims for racial discrimination and retaliation under Title VII, 42 U.S.C. § 1981,

and the PHRA. For purposes of assessing claims such as the ones presented herein, Title VII and

the PHRA have been interpreted in a similar fashion. Ahern v. Eresearch Tech., Inc., 183 F. Supp. 3d

663, 668 (E.D. Pa. 2016) (citing Dici v. Commw. Pa., 91 F.3d 542, 552 (3d Cir. 1996) (the PHRA is

applied in a similar manner as Title VII)). Likewise, race-discrimination claims brought under Title VII

and § 1981 are analyzed under the same burden-shifting scheme. Collins v. Kimberly-Clark Pa., LLC,

247 F. Supp. 3d 571, 588 (E.D. Pa. 2017), aff’d, 708 F. App’x 48 (3d Cir. 2017). Accordingly, I address

all of these claims together.

Defendant’s Motion for Summary Judgment asserts that there is no evidence to support either

(1) Plaintiff’s claims that he was terminated based on his race and gender; or (2) Plaintiff’s claim that

Defendant denied him lateral or promotional opportunities on the basis of his race and gender.3

A. Claims of Termination Based on Race and Gender

To establish a claim of discrimination, a plaintiff must show that an employer had a racially

discriminatory animus against an employee, and that the animus resulted in a challenged action, such as

dismissal, failure to promote, or failure to hire. Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 914 (3d Cir.

1983). A plaintiff may succeed in a discrimination claim against an employer either by (1) providing

direct evidence of unlawful discrimination, or (2) relying on indirect evidence of discrimination through

the McDonnell Douglas burden-shifting scheme. McIlvaine v. ISEO Techs., Inc., 485 F. Supp. 3d 582,

585 (E.D. Pa. 2020) (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 n.4 (3d Cir. 1999)).

3 Defendant also seeks summary judgment as to any retaliation claim Plaintiff may raise. I need

not address this argument because although Plaintiff raised a retaliation claim in his amended charge to

the EEOC, no such claim is present in his Complaint here. Moreover, Plaintiff does not even mention,

let alone attempt to establish, a retaliation claim in his Opposition to the Motion for Summary Judgment.

Here, Plaintiff concedes that there is no direct evidence of discrimination. (Pl.’s Opp’n Summ.

J. 16.) Absent direct evidence of discrimination, a plaintiff must rely on the burden-shifting framework

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must prove by

a preponderance of evidence a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802.

To establish a prima facie case of racial discrimination, a plaintiff must show that he (1) is a member of

a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4)

the circumstances of the adverse employment action give rise to an inference of discrimination. Jones

v. Sch. Dist. of Phila., 198 F.3d 403, 410–11 (3d Cir. 1999).

If the plaintiff establishes a prima facie case of discrimination, a “presumption” of

discrimination is created and the burden of production shifts to the defendant to articulate some

legitimate nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S.

at 802–03. To sustain this burden, “[t]he defendant need not persuade the court that it was actually

motivated by the proffered reasons.” Texas Dept. of Cmty. Affairs v. Burdine 450 U.S. 248, 254 (1981).

Rather, the defendant satisfies its burden of production, and rebuts the plaintiff’s prima facie showing,

simply by introducing admissible evidence that, if taken as true, would permit a finding that the

challenged employment action was taken for legitimate, nondiscriminatory reasons. Id. Finally, if the

employer meets its burden of production, the plaintiff bears the ultimate burden of convincing the trier

of fact that a discriminatory animus was the real reason for the adverse employment action at issue.

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

Defendant contends that Plaintiff fails to establish a prima facie case because he cannot show,

under the third and fourth elements, either that (a) he was subject to an adverse employment action or

(b) race and gender were factors in his termination. Alternatively, Defendant argues that Plaintiff has

not created any genuine issue of material fact regarding whether Defendant’s legitimate non-

discriminatory reason for termination was mere pretext for discrimination.

1. Adverse Employment Action

Under the third element of a prima facie case, “[t]he Supreme Court has interpreted ‘adverse

employment action’ to mean ‘a significant change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different responsibilities, or a decision causing a significant

change in benefits.’” Remp v. Alcon Labs., Inc., 701 F. App’x 103, 106–07 (3d Cir. 2017) (quoting

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). In the context of a

discrimination claim, “[a]n adverse employment action involves activity by an employer ‘that is serious

and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of

employment.’” Reyes v. AutoZone, Inc., No. 08-cv-847, 2009 WL 4559454, at *5 (W.D. Pa. Dec. 2,

2009) (quoting Storey v. Burns Int’l Sec. Servx., 390 F.3d 760, 764 (3d Cir. 2004) (citation omitted)).

“Lateral transfers, changes of title, and different reporting relationships, generally do not

constitute adverse employment actions.” Id. (citing Langley v. Merck & Co., Inc., 186 Fed. Appx. 258,

260 (3d Cir. 2006)). Likewise, “[m]inor changes in duties or working conditions, even unpalatable or

unwelcome ones, which cause no materially significant disadvantage, do not rise to the level of an

adverse employment action.” Homel v. Centennial Sch. Dist., 836 F. Supp. 2d 304, 323 (E.D. Pa. 2011)

(quoting Clegg v. Ark. Dept. of Corrs., 496 F.3d 922, 926 (8th Cir. 2007) (further quotations omitted)).

“Unless there is a claim for ‘constructive discharge,’ an employee’s voluntary resignation does

not constitute an adverse employment action.” Larochelle v. Wilmac Corp., 210 F. Supp. 3d 658, 705

(E.D. Pa. 2016). To establish a constructive discharge, “a plaintiff must prove first that he was

discriminated against by his employer to the point where a reasonable person in his position would have

felt compelled to resign.” Green v. Brennan, 578 U.S. 1084 (2016); see also Mandel v. M&Q Packaging

Corp., 706 F.3d 157, 169 (3d Cir. 2013) (noting that to prove constructive discharge, an employee must

show that “the employer knowingly permitted conditions of discrimination in employment so intolerable

that a reasonable person subject to them would resign.”) (quoting Aman v. Cort Furniture Rental Corp.,

85 F.3d 1074, 1084 (3d Cir. 1996). The court must employ an objective test and “thus an employee’s

subjective perceptions of unfairness do not govern a claim of constructive discharge.” Mandel, 706 F.3d

at 169. “To prove constructive discharge, the plaintiff must demonstrate a greater severity or

pervasiveness of harassment than the minimum required to prove a hostile working environment.”

Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 316 n.4 (3d Cir. 2006) (quotations omitted).

Notably, “[n]o finding of a specific intent on the part of the employer to bring about a discharge

is required for the application of the constructive discharge doctrine. A plaintiff-employee may prevail

on a claim of constructive discharge by establishing that “the conduct complained of would have the

foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person

in the employee’s shoes would resign.” McIlmail v. Pennsylvania, 381 F. Supp. 3d 393, 411–12 (E.D.

Pa. 2019) (quoting Suders v. Easton, 325 F.3d 432, 444 (3d Cir. 2003)) (further quotations omitted)).

The United States Court of Appeals for the Third Circuit identified the following factors that may be

indicative of constructive discharge: (1) threat of discharge; (2) suggesting or encouraging resignation;

(3) demotion or reduction of pay or benefits; (4) involuntary transfer to a less desirable position; (5)

alteration of job responsibilities; and (6) unsatisfactory job evaluations. Clowes v. Allegheny Valley

Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993).

Taking the evidence in the light most favorable to Plaintiff, I find that a genuine issue of material

fact exists as to whether Plaintiff was constructively discharged. Plaintiff testified that, both at the

Security meeting and in his conversation with Christopher Smith, he was told that if he resigned that

day, he could leave on good terms. Immediately following both the interview with Plaintiff and the HR

meeting, Plaintiff claims he was escorted off the property, told he could not return until directed, and

instructed to turn in his ID, credit card, and key. As Plaintiff stated, “there was no way for me to stay

on good terms and the writing was on the wall.” (Pl.’s Ex. H, 719:1–20.) Although Plaintiff ultimately

did not quit until the next morning, he remarked that he felt forced to quit because he otherwise would

have been terminated and had a stigma attached to him. (Def.’s Ex. 2, 87:2–90:6.) As a reasonable jury

could find that such circumstances rose to the level of a constructive termination, I decline to grant

Defendant’s Motion on this ground.4

2. Whether There Is Evidence that Race and Gender Were Factors in the Adverse

Employment Decision

Under the fourth element of a prima facie case, a plaintiff can satisfy his burden by presenting

evidence upon which a “court can infer that if the employer’s actions remain unexplained, it is more

likely than not that such actions were based on impermissible reasons.” Equal Employment Opportunity

Comm’n v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990). One way that a plaintiff can make such

a showing is by demonstrating that he was treated less favorably than similarly situated employees

outside of the protected class. Jones, 198 F.3d at 413. Alternatively, a plaintiff may “rely on

circumstantial evidence that otherwise shows a causal nexus between his membership in a protected

class and the adverse employment action.” Greene v. Virgin Islands Water & Power Auth., 557 F. Appx.

189, 195 (3d Cir. 2014).

In a reverse discrimination case such as the one before me—where the allegations are

discrimination against a majority race—the Third Circuit has clarified that “all that should be required

to establish a prima facie case . . . is for the plaintiff to present sufficient evidence to allow a fact finder

to conclude that the employer is treating some people less favorably than others based upon a trait that

is protected under Title VII.” Besko v. NJ Juvenile Justice Comm’n, 558 F. App’x 295, 298 (3d Cir.

2014) (quotations omitted). While “similarly-situated” does not necessarily mean identically situated,

4 Although Plaintiff’s Response in Opposition to the Motion for Summary Judgment does not

raise his negative performance review as an adverse employment action, it is well established that results

of a performance evaluation do not constitute an adverse employment action unless they have some

“tangible effect upon the recipient’s employment.” Turner v. Gonzales, 421 F.3d 688, 696 (8th Cir.

2005) (quoted in Foster v. Ashcroft, No. 05-cv-1734, 2006 WL 1995305, at *2 (D.N.J. July 14, 2006));

see also Cashman v. CNA Fin. Corp., No. 08-cv-5102, 2012 WL 113667, at *12 (E.D. Pa. Jan. 13, 2012)

(“A negative performance review and being placed on a performance improvement plan, without more,

is not an adverse employment action.”).

As Plaintiff identifies no tangible effects on his employment suffered as a result of his “Limited

Impact” rating in 2017, I will not consider it further.

the plaintiff must nevertheless be similar in “all relevant respects.” Opsatnik v. Norfolk S. Corp., 335

F. App’x 220, 222–23 (3d Cir. 2009) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)).

This often requires a showing that the relevant aspects of the plaintiff's employment situation are “‘nearly

identical’ to those of the co-workers that plaintiff alleges were treated more favorably.” Hobson v. St.

Luke's Hosp. & Health Network, 735 F. Supp. 2d 206, 214 (E.D. Pa. 2010) (citing Solomon v.

Philadelphia Newspapers, Inc., No. 05-cv-5326, 2008 WL 2221856, at *15 (E.D. Pa. May 21, 2008)).

Demonstrating that employees are similarly-situated 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.” Opsatnik, 335 F. App’x at 223 (quotations omitted). To that end, a

plaintiff must show “that the other employee’s acts were of ‘comparable seriousness’ to his own

infraction.” Anderson v. Haverford College, 868 F. Supp. 741, 745 (E.D. Pa. 1994) (quoting Lanear v.

Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988)). Whether a particular fact or circumstance is

relevant for purposes of a “similarly-situated” analysis must be determined by the context of

each case. Hobson, 735 F. Supp. 2d at 214 (citing Houston v. Easton Area Sch. Dist., 355 F. App’x 651,

654 (3d Cir. 2009)).

Where the plaintiff asserts that the discrimination resulted from a company-wide affirmative

action policy, he or she must establish a causal connection between that policy and the adverse

employment action. Mere evidence that the affirmative action policies are “aspirational” does not

constitute persuasive evidence of discrimination against the majority. McHenry v. Pa. State Sys. of

Higher Ed., 50 F. Supp. 2d 401, 412 (E.D. Pa. 1999). Even if a plaintiff produces evidence about a

company’s intent to “ameliorate the underrepresentation of certain groups,” the plaintiff must show that

such policies were actually relied upon in making the hiring/termination decision at issue. Id.

Here, the entirety of Plaintiff’s argument in support of this element of the prima facie case

asserts:

It is beyond dispute that the separation of Mr. Mangold from PECO was initiated

by a complaint of threatening and potentially violent conduct made by Ms.

Brooks. An inference can be made that the complaint was motivated, at least in

part, by the fact that Plaintiff was a white male.

It is not necessary that Plaintiff point to the current political and cultural milieu

in this country which surrounds this case to support the inference that his being

a white male and his self-identification as a Trump supporter with an interest in

the QAnon phenomenon stereotypes or marked him, as the “White Men and

Allies Learning Lab” which PECO sent its Vice Presidents to demonstrate[]

associations between whiteness, support of President Trump, racism and even

violence in the statements of the PECO executives who were participants. The

concerns of the white males in the “Lab” are very relevant to Plaintiff and his

circumstance: they expressed a concern that their being white would cause

certain views to be attributed to them ‘unfairly.’ They also expressed a concern

with being stereotyped as white males and Trump supporters, and the comments

about their assumed support of Trump associated them with “disturbing and

scary behavior.”

The backdrop of PECO’s AWD program and its concern with diversity,

extravagantly expressed in the proposed aggressive posture of the “Big Hairy

Arduous Goal,” which proposed a “swapping” of diverse for nondiverse in the

workforce, and its actual implementation as indicated in the sworn statements of

Mr. Kirschbaum that connected its discriminatory application to the very dictates

of the COO of PEO reveal a corporate environment that overarches the distinct

actions of the players in this case, whose “diverse” characteristics (a

predominance of female and/or minority individuals in high ranking executive

positions) and actions in the larger corporate reality. The perceptions of Mr.

Mangold’s supervisor, Mr. Miles, expressed in private that he was not going to

be promoted and as a result of this corporate environment bring that reality home

to the smaller division or unit of PECO involved in this case. His perceptions

were also shaped by his being rejected for a promotion to the vacated supervisory

position directly above him when it went to Ms. Brooks. While it is not known

if Mr. Miles is aware of the reasons for the rejection, the testimony of record as

to why he didn’t get the job was that he didn’t interview well.

The actions of Ms. Brooks—beyond identifying Mr. Mangold as a potential

threat—show her bias against white males. She went out of her way, without

any foundation whatsoever, to try to implicate Mr. Miles in Mr. Mangold’s

“conspiracy,” going out of her way to identify him a potential co-conspirator in

whatever nefarious designs she unfairly ascribed to Mr. Mangold as a fellow

employee “with performance issues.” The only low impact ratings she

personally gave to direct reports were reserved for Mr. Miles and Mr. O’Leary,

both white males. She hired a black female to fill a spot under Mr. Miles when

Plaintiff was separated from the company. She suggested and advocated for a

low impact rating for Mr. Mangold when two female managers made negative

remarks about him after Mr. Miles had presented his recommendation that Mr.

Mangold receive a higher, intermediate rating.

In short, the record contains sufficient evidence supporting an influence [sic] that

unlawful racial considerations played a factor in the treatment that Plaintiff

received at PECO.

(Pl.’s Opp’n Summ. J. 18–20.)

Nothing in this argument or the substantiating evidence creates any plausible inference

connecting Plaintiff’s low performance rating, Defendant’s investigation of Plaintiff, or Plaintiff’s

ultimate resignation, under circumstances he believed constituted constructive termination, with any

discriminatory intent by Defendant based on either race or gender. As set forth in detail above, the AWD

adopted by Defendant involved an aspirational approach to creating a diverse slate of candidates and

achieving a seven percent increase in diverse headcount over five years by increasing the flow of diverse

talent coming into the company, improving development and advancement strategies, and improving

retention strategies. (Krick Dep. 64:2–66:7.) Plaintiff presents no evidence suggesting that the AWD

initiative or the fact that Plaintiff is a white male bore any role in Ms. Brooks’s decision to report her

meeting with Plaintiff to Security or Security’s decision to investigate Plaintiff and suspend him with

pay. Indeed, Plaintiff concedes that (a) he unilaterally initiated a business meeting to purportedly discuss

his performance evaluation; (b) he approached his supervisor with codes; (c) he identified certain co-

workers with whom he had a conflict within the codes; and then (d) he volunteered information about

his interest in QAnon. Ms. Brooks testified—and there is no evidence to the contrary—that she never

described Plaintiff as a violent or threatening individual, only that Plaintiff’s refusal to discuss the details

of his concerns and insistence on “play[ing] a game” with codes made her feel threatened.

Even taking as true Plaintiff’s entire account of the conversation with Ms. Brooks, Plaintiff does

not raise any plausible argument—beyond mere speculation—that the fact that he was a white male

engaging in these actions, as opposed to a female or a member of a different race, made any difference

in Ms. Brooks’s reaction to them. Indeed, Plaintiff effectively admits that it was not the nature of his

being a white male that raised Ms. Brooks’s concerns, but rather the fact that he used codes to try to

communicate and volunteered that he followed QAnon conspiracy theories. Ultimately, whether Ms.

Brooks should have objectively felt threatened by the content of Plaintiff’s communication to her is of

no moment. The fact remains that, according to all of the evidence before me, it was precisely that

conversation—and not Plaintiff’s race, gender, or desire to meet a diversity initiative—that triggered

Ms. Brook’s decision to report Plaintiff to Security immediately following this meeting.

Plaintiff also does not connect Security’s subsequent investigation of him with any inference of

discrimination. Two white males, neither of whom had any clear incentive to advance the AWD

initiative, conducted the interview. Plaintiff admitted that he was presented with the codes he had given

to Plaintiff and asked to decipher them. Plaintiff does not suggest that the Security officers made any

comments about his race, his gender, or even his political beliefs. Moreover, Plaintiff does not identify

any non-white or female employee who engaged in similar conduct and was treated better or even

differently than Plaintiff.

In a last-ditch effort to create an inference of discrimination, Plaintiff identifies several isolated

pieces of evidence, none of which satisfy his legal burden.

First, Plaintiff contends that the AWD initiative corresponded with an actual increase in the

percentage of nondiverse people in Defendant’s workforce. However, as the Third Circuit has

recognized, “having a diverse workforce does not violate Title VII: ‘an employer has every right to be

concerned with the diversity of its workforce, and work environment.’” Musa v. Soar Corp., No. 12-cv-

2847, 2014 WL 6809019, at *7 (E.D. Pa. Dec. 1, 2014) (quoting Iadimarco v. Runyon, 190 F.3d 151,

161 (3d Cir. 1999)). “Employer initiatives to increase racial diversity within a workplace in order to

‘enable [an organization] to effectively service an increasingly diverse customer base’ are lawful ‘to say

nothing of the laudable goal of expanding the horizons of opportunity for more and more members of

this great pluralistic society.’” Id. (quoting Reed v. Agilent Techs., Inc., 174 F. Supp. 2d 176, 186–87

(D. Del. 2001)). “Unless a plaintiff can demonstrate that a defendant employer’s ‘approach to diversity

had some negative impact upon his individual employment situation, the mere existence of a policy

promoting diversity awareness is not evidence of discrimination’ under Title VII.” Id. (quoting Reed,

174 F.2d at 185); see also Opsatnik, 2008 WL 763745, at *11 (holding that “to use diversity concerns,

without more, as evidence of discrimination would be irresponsible”).

Second, Plaintiff argues that the relevant management personnel in Plaintiff’s business unit were

predominantly not white males, but rather diverse personnel. But Plaintiff fails to link the existence of

such diversity with any showing of discrimination against him or white males in general. Simply

because Plaintiff’s reporting chain included white males, white females, black males, and black females

does not, without more, reflect discrimination in his termination decision. To suggest otherwise would

create an inference of discrimination every time a nondiverse manger or supervisor is hired or promoted

over a white male.5 Moreover, I would be remiss to ignore that numerous other members of Defendant’s

executive team were, in fact, white males.

Finally, Plaintiff suggests that just after Plaintiff left the company in 2018, a black female named

Youtha Fletcher was hired to work under Mr. Miles. Based on this fact, Plaintiff contends that he was

replaced with a member of a different race and gender. This argument, however, is unsupported by any

evidence. As Plaintiff admitted in his deposition, Ms. Fletcher had been employed as a contractor with

Defendant and, before Plaintiff ever resigned, she became a full-time employee and reported directly to

Mr. Miles. (Def.’s Reply Br. Ex. B, 143:9–144:17.) As such, by Plaintiff’s own concession, she could

not have replaced him.6

5 Plaintiff references the lawsuit by Fred Kirschbaum who made similar allegations that Defendant

engaged in a pattern and practice of discrimination in an effort to promote its AWD initiative, and that

he was terminated in retaliation for refusal to comply with AWD. Mr. Kirschbaum’s litigation was

ultimately settled by the parties prior to any discovery or dispositive motions being filed. Neither party

deposed Mr. Kirschbaum in connection with this case, and Plaintiff relies solely on Mr. Kirschbaum’s

statements made in his complaint. Plaintiff has not shown how unproven allegations in a separate

complaint have any bearing on whether Plaintiff here suffered discrimination. As such I decline to

engage in full-blown litigation of Mr. Kirschbaum’s case.

6 It is also notable that, upon the departure of Vien Cash, an Asian female manager who also

reported to Ms. Brooks, Ms. Brooks hired a white male as her replacement. (Def’s Reply Br., Ex. A,

42:2–7.)

In short, Plaintiff has failed to adduce any evidence from which a reasonable juror could

plausibly infer that either Ms. Brooks’s reporting of Plaintiff to Security, Security’s investigation, or

Defendant’s “constructive termination” of Plaintiff pending the outcome of the investigation were

related to either his race or gender. The mere existence of Defendant’s company-wide initiative to

increase diversity in its workforce does not, without more, allow any reasonable factfinder to make the

broad, and otherwise unsubstantiated leap, that this initiative was the catalyst behind what was, by all

accounts, an individualized employment decision. Accordingly, I find that Plaintiff has not met his

burden of establishing a prima facie case of discrimination.

3. Whether Plaintiff Can Prove Pretext

Finally even assuming Plaintiff could establish a prima facie case, Defendant has articulated a

legitimate non-discriminatory reason for its decision. Specifically, as articulated by Ms. Brooks,

Plaintiff’s actions during her meeting were perceived as threatening to other employees. She explained

that:

[H]e named people [when deciphering some of the codes] that he had a direct

conflict with. That is threatening to me. These are people on my team that he

had a direct conflict with so, yes, I felt threatened by that, because although he

didn’t say anything personally threatening to me, he talked about people that he

had disagreements and conflicts with, so that was threatening . . . I felt threatened

by David because he would not answer my questions. The threatening nature of

it was that he wanted to play a game, which is a very odd term for anyone in a

professional environment to say to anyone, especially when a manager says, I

don’t play games, let’s have a conversation. That was very odd. He refused to

have a conversation but wanted to have me play a game with him and talk in

terms of codes, that is threatening, yes, especially when he mentioned employees

that he had direct conflicts with. As a manager, I had to take action on that.

(Brooks Dep. 89:02-90:25, 93:14–94:20.)

In the face of a non-discriminatory reason for Defendant’s subsequent actions towards Plaintiff,

Plaintiff must establish that the explanation is simply pretext for discrimination. In order to substantiate

an assertion of pretext, a plaintiff must provide the court with sufficient “’evidence, direct or

circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated

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

motivating or determinative cause of the employer’s action.’” Michaels v. BJ’s Wholesale Club, Inc.,

604 F. App’x 180, 182 (3d Cir. 2015) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

The evidence must allow a factfinder to infer that Defendant’s nondiscriminatory basis for termination

“was either a post hoc fabrication or otherwise did not actually motivate the employment action.”

Fuentes, 32 F.3d at 764. Moreover, the plaintiff must do more to show that the decision was wrong or

mistaken because the issue is whether the defendant was motivated by discrimination, not whether the

decision was “wise, shrewd, prudent or competent.” Id. at 765. Rather, the plaintiff “must demonstrate

such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Defendant’s]

proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them

‘unworthy of credence.’” Id. at 765.

Plaintiff identifies no such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in Defendant’s reasons. Rather, as noted in detail above, Plaintiff concedes that he

unilaterally initiated a meeting with Ms. Brooks to discuss a performance review he received months

earlier. During that meeting, he engaged in conduct which Ms. Brooks, rightly or wrongly, deemed

threatening to other employees, and, on that basis, she reported him to Security. Security then

immediately conducted an investigation and relieved Plaintiff of his duties pending completion of their

investigation. Before any final decision was made, Plaintiff resigned, believing he had no other choice.

Regardless of whether Defendant’s actions rested on a misunderstanding of or overreaction to Plaintiff’s

behavior, nothing in the undisputed facts suggest that Defendant’s decisions were a mere pretext to

remove a white male from his position in an effort to advance its diversity objectives.

d. Conclusion

In short, I find that no genuine issue of material fact exists as to whether Plaintiff was

constructively terminated based on his race and/or gender. Plaintiff has produced no evidence

suggesting that he was terminated under circumstances giving rise to an inference of discrimination.

Moreover, Plaintiff has failed to establish that Defendant’s legitimate non-discriminatory reason for its

investigation of Plaintiff was pretext. Accordingly, I will grant summary judgment in favor of Defendant

on this claim.

B. Claims of Denial of Lateral or Promotional Opportunities Based on Race and Gender

Although not addressed in his opposition to Defendant’s Motion for Summary Judgment,

Plaintiff’s Complaint raised a single allegation that, “[d]uring the course of his employment, Plaintiff

also applied for transfers and promotions that were given to less qualified non-white and/or female

employees, and Defendant also promoted or transferred other co-workers of Plaintiff to a level or

position Plaintiff had expressed interest in without posting for the position or giving Plaintiff an

opportunity to apply, including both a Hispanic male and a white female from the same work group as

Plaintiff.” (Compl. ¶ 26.) Defendant now contends that it is entitled to summary judgment on this claim.

For failure to promote claims, “[t]he initial burden is on the employee” to show that “(1) [he or

she] is a member of the protected class, (2) [he or she] sought and was qualified for the promotion, (3)

[he or she] was rejected for the promotion, and (4) a non-member of the protected class was treated more

favorably.” Young v. Pennsauken Twp. Sch. Dist., 47 F. App’x 160, 161 (3d Cir. 2002). If an employee

makes out this prima facie case, the burden shifts to the employer to produce a legitimate non-

discriminatory reason for the employee’s rejection. Id. If the employer produces a legitimate reason,

the burden then shifts back to the employee to show pretext. Id.

I find that Plaintiff has not met his burden on the failure to promote claims for several reasons.

First, to the extent Plaintiff claims that he was denied purely lateral transfers, the refusal to grant a purely

lateral transfer does not, by itself, amount to adverse employment action. Fallon v. Meissner, 66 F.

App’x 348, 351 (3d Cir. 2003); see also Rosati v. Colello, 94 F. Supp. 3d 704, 715 (E.D. Pa. 2015) (“Nor

was [plaintiff’s] reassignment to [a lateral police unit] an adverse employment action. Minor actions,

such as lateral transfers and changes of title and reporting relationships, generally do not suffice to

constitute adverse employment actions.”); Woods v. Salisbury Behavioral Health, Inc., 3 F. Supp. 3d

238, 249–50 (M.D. Pa. 2014) (“In cases where the sought position is a lateral transfer, without additional

material benefits or prestige, it would be improper to conclude that a denial of such a transfer would be

a materially adverse action.” (citation omitted)). An employee’s subjective preference for a different

position is insufficient to establish an adverse employment action. See Swain v. City of Vineland, 457

F. App’x 107, 110–11 (3d Cir. 2012) (citation omitted).

Second, to the extent Plaintiff asserts that he was denied promotions to various jobs due to his

race and/or gender, Plaintiff has produced no evidence to substantiate his claim. Indeed, the sole

evidence on this issue shows that during his tenure as a full-time employee with Defendant, Plaintiff

applied for six positions, four of which went unfilled and for which no one was hired, and the other two

of which were filled by white female candidates. (Def.’s Ex. 96; Def’s Ex. 131, ¶¶ 7–11.) The first of

the two filled positions was for a Principle, Specialists, Business IT. (Def.’s Ex. 96.) The selected

candidate met all the minimum qualifications with over eight years of both IT experience and

management experience, and also met the “preferred” qualification of having a graduate degree. (Def.’s

Exs. 96, 99, 100.) The other position was for IT manager, and the selected candidate had over twelve

years of both substantive IT experience and management experience and also possessed the “preferred”

qualification of a graduate degree. (Def.’s Ex. 101, 102.) By contrast, Plaintiff’s resume reflected that

he had only been with Defendant for three years and with Calico Energy Services for six years. (Def.’s

Ex. 103.) He had no substantive IT experience and did not meet the “preferred” qualification of having

a master’s degree. (Id.)

Absent some evidence that Plaintiff was qualified for the job or that a less qualified candidate

was selected for the sought-after position, Plaintiff cannot succeed on this claim. Accordingly, I will

grant summary judgment in favor of Defendant.

IV. CONCLUSION

Title VII, § 1981, and the PHRA exist to protect against discrimination based on—among other

things—race or gender. These statutes are not available to correct all perceived employment wrongs.

Although Plaintiff attempts to link the events in question to Defendant’s AWD initiative and a workplace

climate seeking to create diversity among the workforce, the record is devoid of evidence showing that

any of the events at issue were even remotely connected to this initiative or that Plaintiff was

discriminated against as a white male. Given the absence of any evidence on which a reasonable jury

could find in favor of Plaintiff on any of his claims, I will grant summary judgment for Defendant.

An appropriate Order follows.