The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LISA CARLSON : CIVIL ACTION
:
v. : NO. 22-125
:
QUALTEK WIRELESS LLC :
MEMORANDUM
KEARNEY, J. August 10, 2022
A Minnesota employee claims her former Pennsylvania based employer retaliated against
her for complaining about gender bias by not promoting her to a position requiring work in
Pennsylvania, not paying the correct bonuses for 2018 and 2019, and by firing her after she joined
another woman in raising questions about the amount of bonus paid to her and another woman.
The employer confirmed it denied promotion because the promotion required the person to be in
Pennsylvania and the Minnesota employee did not want to move, and the termination arose from
a restructuring of the employer’s finance team. The employee also claims some form of oral
contract as to a certain bonus payment under the Pennsylvania Wage Payment and Collection Law
which is contrary to the written wage contract. Her arguments are based on scattered facts designed
to induce a jury’s sympathy. But her limited disputes of fact are immaterial to her claims of
retaliation and failure to pay her view of a contracted bonus. There are no genuine issues of facts
material to her claims. She fails to establish retaliation under federal law or a contractual obligation
to pay a certain bonus under Pennsylvania’s Wage Payment and Collection Law. We enter
summary judgment in favor of the employer and dismiss the employee’s Title VII and Equal Pay
Act retaliation claims and claims under the Pennsylvania Wage Payment and Collection Law
related to her purported bonus.
I. Undisputed facts material to the retaliation and wage payment claim.1
Lisa Carlson of Minnesota began working in 2010 for Velocitel, Inc., a regional company
based in Illinois providing services to wireless providers including its primary customer, AT&T.2
Qualtek Wireless, LLC purchased Velocitel in November 2017. Qualtek is headquartered in this
District and provides services to wireless telecommunications providers like AT&T throughout
the United States.3
Ms. Carlson begins working for Qualtek in November 2017.
Qualtek offered positions to several Velocitel employees including offering Ms. Carlson
employment as a Market Financing Planning and Analysis Manager, the same position she held at
Velocitel, in a November 19, 2017 offer letter.4 Ms. Carlson does not have a bachelor’s degree.5
Qualtek offered Ms. Carlson an annual base salary of $92,300 and eligibility for participation in
an annual Management Incentive Compensation Program, a bonus program.6 Ms. Carlson had the
potential to receive a bonus of up to ten percent of her base salary.7 Ms. Carlson agreed Qualtek
retained the discretion to pay the bonus based on Ms. Carlson’s individual performance,
Velocitel’s performance, and Qualtek’s overall performance.8 Ms. Carlson accepted Qualtek’s
offer.9
Ms. Carlson continued to live in Minnesota while working for Qualtek.10 She continued to
report to her longtime supervisor, Dana Freedman, Velocitel’s Director of Financial Planning and
Analytics, also hired by Qualtek.11 Director Freedman worked at Velocitel’s corporate
headquarters in Illinois.12
Qualtek permitted Ms. Carlson to continue working from Minnesota and Director
Freedman to continue working from Illinois consistent with its practice, following an acquisition,
to “leave everything as is and migrate to a shared services environment.”13 But Director Freedman
travelled regularly to Qualtek’s King of Prussia headquarters to meet with Qualtek’s Finance
team.14 Qualtek operated under a shared services model; its “back office functions” of Human
Resources, risk and safety, payroll, finance, accounting, facilities, and information technology are
centralized in one location.15 The back office functions support all of Qualtek’s operations at its
field locations to, among other reasons, “ensure that situations are handled consistently so that
[Qualtek] [does not] have redundancies across markets.”16
Qualtek makes Mr. Neff and Ms. Carlson Finance Managers
in February and March 2018.
Qualtek offered Bruce Neff a position as a Finance Manager in February 2018 in its
Pennsylvania home office with an annual base salary of $90,000 and eligibility to participate in
the company’s bonus program with a potential bonus of $10,000 prorated to his start date.17 Mr.
Neff holds a bachelor’s degree in accounting and resides in Pennsylvania.18
Back in Illinois and Minnesota, Director Freedman resigned from Qualtek in March
2018.19 Ms. Carlson swears she travelled to King of Prussia nearly every week in the early 2018
to transition Velocitel’s financial process to Qualtek’s process and (in her view) to transition
Director Freedman’s duties to her.20 Former Velocitel Chief Financial Officer Joe Busky
recommended Ms. Carlson replace Director Freedman.21 Director Freedman also recommended
Ms. Carlson as her replacement.22 Former Velocitel CFO Busky completed an internal Velocitel
“Personnel Action Notice” form on March 8, 2018 checking off the “promotion” box for Ms.
Carlson to the position of “Director FPA” (which we understand as Director of Financial Planning
and Analytics) as the “Replacement For” Director Freedman with an annual salary of $102,000.23
But Qualtek decided otherwise; it did not offer Ms. Carlson the Director of Financial
Planning and Analytics position in March 2018. Qualtek’s Chief Administrative Officer Downey
instead offered Ms. Carlson the position of Finance Manager with a base salary of $105,000 with
an “annual potential bonus eligibility [of] $20,000, however for 2018, it will be prorated to the
commencement date for this position.”24 Ms. Carlson accepted the terms of Qualtek’s offer to
become a Finance Manager with a potential bonus of up to $20,000 as confirmed in a March 30,
2018 offer letter.25 There is no dispute Mr. Neff in Pennsylvania earned less in salary and potential
bonus than Ms. Carlson when Qualtek hired Mr. Neff as a Finance Manager.
Ms. Carlson complains about her 2018 bonus without referencing her gender.
Qualtek provided Ms. Carlson with a positive performance review for 2018.26 Qualtek
increased her salary to $115,000 and awarded a $5,000 bonus in December 2018.27 Qualtek paid
$2,500 of her 2018 bonus in December 2018 and $2,500 in June 2019.28
Ms. Carlson believed Qualtek made an error in her 2018 bonus award and she should have
received a prorated $20,000 bonus for 2018.29 Ms. Carlson “immediately” noticed the error in her
bonus payment after receiving the first half of her 2018 bonus in December 2018 and contacted
Qualtek’s Payroll Manager Kristie Marzocco.30 At some unidentified time after receiving the June
2019 payment, Ms. Carlson complained to her supervisor, Director of Finance Shawn Kemmerer,
about her bonus.31
Director of Finance Kemmerer swore at his deposition: Ms. Carlson complained to him
about her bonus and “at one point, it was shown or I had seen kind of the piece of the change that
was approved and I know her bonus potential, which is always discretionary for Qualtek, had
changed. That change was approved”;32 the approved bonus changed upward, from $5,000 to
$20,000, but he did not know who made the change;33 Qualtek made a discretionary bonus but he
does not recall why, does not think it is performance-based “but I don’t think it’s for me to say at
this point”;34 and he and Ms. Carlson understood the bonus “to be based off of some percentage
of the annual bonus potential … but that doesn’t necessarily mean that that was correct because it
wasn’t ever told specifically to us that way.”35
Director Kemmerer swore he raised Ms. Carlson’s concerns regarding her bonus to Vice
President of Finance Dave Conn and Vice President of Human Resources Stefanie Trybula.36
Director Kemmerer told Vice Presidents Conn and Trybula “[Ms. Carlson] had an understanding
that her annual bonus amount as defined in ADP, which holds that information, was incorrect. I
took her at her word and brought that up. Again, I didn’t know at the time if it had changed of it
was approved, I only know what the ADP was telling me.”37 Director Kemmerer swore Vice
Presidents Conn and Trybula “acknowledged that, okay, yeah, there was a change that was not
accurately reflected in ADP at that time,” referring to the change in potential bonus to $20,000,
and “they both acknowledged that, yes, it should have been changed.”38 Director Kemmerer then
told Ms. Carlson he raised her complaint with Vice President Conn and Vice President Trybula.39
Ms. Carlson, at an unidentified later time, told Director Kemmerer Qualtek had not
corrected the bonus potential error and he again spoke to Vice President Trybula who
acknowledged the bonus potential error had not been corrected.40 Director Kemmerer swore he
sent an email to Vice President Trybula to notify her he “didn’t see the change” to Ms. Carlson’s
potential bonus amount “in the system.”41 Director Kemmerer testified “[i]t’s just a matter of, you
know, is there something that’s going to be updated in the system, because it was my understanding
that any kind of bonus that was calculated to be paid out was discretionary in nature and whatever
her total amount or total expected amount was, that, you know, may or may not have been different
from what ADP was showing was not necessarily relevant for that calculation.”42 Director
Kemmerer swore after raising Ms. Carlson’s concerns regarding her 2018 bonus, Vice President
Trybula acknowledged the information in the system is “incorrect.”43
Ms. Carlson concedes there is no record linking the failure to receive the fullest portion of
a potential $20,000 bonus for 2018 or her complaints to Director Kemmerer in mid-2019 to her
gender.44
Qualtek promotes Mr. Neff to a Director of Finance position and hires Brandon Ebeling to a
Director position in 2019.
Qualtek transferred Mr. Neff in February 2019 to Velocitel.45 The terms and conditions of
his employment remained the same.46 Qualtek promoted Mr. Neff to a Director of Finance position
two months later.47 Qualtek raised his annual salary to $115,000, the same salary increase Qualtek
provided to Ms. Carlson at the end of 2018.48
Qualtek hired Brandon Ebeling to an open Director of Finance position on October 1, 2019
at a salary of $125,000 with a potential bonus eligibility of fifteen percent of his annual salary.49
Mr. Ebeling holds a bachelor’s degree in finance and master’s degree in accounting.50 Mr.
Ebeling’s duties included overseeing the west, central, and east divisions of Qualtek Wireless,
LLC, working on reconciling the profits and loss for each market, advancing profitability in each
market, and working on the management reports necessary to run the business.51
Ms. Carlson complains in October 2019 about Mr. Neff’s promotion and Mr. Ebeling’s hiring
but chooses to not attend a scheduled meeting to address her concerns.
Ms. Carlson alleges she complained about gender discrimination on October 10, 2019, after
Mr. Neff’s promotion to a Director position in April 2019 and Mr. Ebeling’s hiring to a Director
position in October 2019.52 Ms. Carlson contends she complained to Human Resources Director
Lauren Petzar on October 10, 2019 about Mr. Neff’s promotion to a Director of Finance position
and of discrimination on the basis of her gender.53
Human Resources Director Petzar sent Ms. Carlson an email on October 14, 2019 as a
follow up to their October 10, 2019 conversation.54 Human Resources Director Petzar asked Ms.
Carlson for her availability to schedule a meeting to speak with Qualtek’s Vice President of Human
Resources Trybula.55 Ms. Carlson responded she planned on being in King of Prussia in the
coming weeks and asked to wait to speak to Vice President Trybula until then. Human Resources
Director Petzar asked Ms. Carlson if she is sure she wanted to wait and suggested they schedule a
call and follow up with an in-person meeting. Human Resources Director Petzar suggested she and
Ms. Carlson have a phone meeting on Thursday and Friday, October 17 and 18, 2019.
Ms. Carlson cancelled the meeting with Vice President Trybula.56 Ms. Carlson concedes
she cancelled the meeting but asserts she did so only in fear of retaliation.57 In her separate
Statement of Undisputed Facts, Ms. Carlson asserts she cancelled her meeting with Vice President
of Human Resources Trybula for fear of retaliation and confided in Human Resources Director
Petzar of her retaliation fear, citing her own deposition testimony Vice President Trybula “proved
later on was a very difficult person.”58
Ms. Carlson applies for a Director position in November 2019 and then does not pursue the
position because Qualtek required this position to be located in Pennsylvania.
Ms. Carlson applied for an open Director of Finance position at Qualtek’s headquarters in
King of Prussia in November 2019 even though she lived in Minnesota.59 Ms. Carlson told Human
Resources Director Petzar she applied for the open Director of Finance position in a November
26, 2019 email.60 Human Resources Director Petzar notified Matt Webb, Qualtek’s Director of
Recruiting, of Ms. Carlson’s application.61 Human Resources Director Petzar also told Recruiting
Director Webb and Vice President of Human Resources Trybula she “had that conversation with
[Ms. Carlson] when I was in [Minnesota]. I told [Ms. Carlson] that shared services position [sic]
are in [King of Prussia]. She is not relocating. She just purchased a home in [Minnesota].”62
Recruiting Director Webb told Ms. Carlson a week later he is the “new head of recruiting
and [he would] be happy to set some time aside to discuss this position although I will mention
that it will be located at the office in King of Prussia, PA” and asked to schedule a time to speak
to her.63 Ms. Carlson responded, asking whether Qualtek would consider “anyone outside of the
Qualtek [King of Prussia] office” explaining she “currently [performs] the same thing as this
position for Velocitel, without issue[,] while located in [Minnesota], and the company that this
would manage is actually located in [Minnesota] and I have worked with them for many years and
it would be a great benefit to work with them in person.”64 Recruiting Director Webb told Ms.
Carlson the Director position must be based at Qualtek’s headquarters in Pennsylvania.65
Ms. Carlson told Human Resources Director Petzar she would not relocate to Pennsylvania
because she purchased a home in Minnesota.66 Ms. Carlson testified she knew at the time she
applied for the open Director position, having been “told they would not consider anybody outside
of the Qualtek office” in King of Prussia.67 Ms. Carlson wondered whether she could work in a
Director of Finance position in Minnesota because she performed the same work for Qualtek’s
new acquisition in Minnesota.68 Ms. Carlson testified Human Resources Director Petzar told her
the position required her to be at the King of Prussia office and her application for the Director
position while still in Minnesota “might be an issue.”69 Ms. Carlson testified Recruiting Director
Webb asked his “superiors to see and understand why [the position] needed to be in King of Prussia
because of the issues I had brought up in the email” and, after inquiring, told Ms. Carlson the
position must be in King of Prussia.70 Ms. Carlson testified she was unwilling to move because
she recently purchased a home in Minnesota.71
Ms. Carlson contacts Vice President of Human Resources Trybula to complain
about 2019 bonus disparities.
Ms. Carlson received a year-end salary increase to $118,450 in early January 2020.72
Qualtek also paid her a $2,875 year-end bonus for 2019 on January 24, 2020.73 Ms. Carlson
complained to Payroll Manager Marzocco, Human Resources Director Petzar, and Vice President
Trybula about the calculation of her 2019 bonus.74 Ms. Carlson complained on January 23, 2020
of her “bonus [] calculated off off [sic] the wrong amount. My bonus is 20k, not 11k. Please have
the correct amount deposited tomorrow.”75 Human Resources Director Petzar spoke with Ms.
Carlson on January 23 and reported the conversation to Vice President Trybula.76 Director Petzar
reported Ms. Carlson is “upset due to the Finance reorg” so much so she “needed to take a mental
health day.”77
Vice President Trybula responded to Ms. Carlson on January 24, 2020: “I am aware that
the discretionary bonus amount listed in your offer letter is [$20,000]. Please note that Kevin’s
email regarding the bonus explained that our Board of Directors approved a reduced bonus for the
2019 calendar year, as the Company did not achieve the appropriate thresholds to pay out a full
bonus. Additionally, please be advised that Human Resources did not determine the bonus amounts
that were issued to employees. You were approved for a gross amount of $2,875.”78
Around this same time—January 23, 2022—Kayla Lorenzen, Finance Supervisor and Ms.
Carlson’s direct report, emailed Vice President Trybula and Director Petzar to complain about her
own 2019 bonus.79 Ms. Lorenzen complained her bonus should be $7,500, she received less, and
her team received a higher percentage bonus than she received.80 Vice President Trybula
responded to Ms. Lorenzen’s complaint on January 24, 2020, telling Ms. Lorenzen bonuses are
discretionary and the company did not reach its threshold to award a full bonus.81 Ms. Lorenzen
responded two hours later with a complaint her bonus is less than fifty percent of her male
counterparts with the same title, less than others’ bonuses, and complained African American men
received one-fifth of the bonus received by others.82
Ms. Carlson emailed Vice President Trybula minutes later “echoing” Ms. Lorenzen’s
“concerns” and questioned Qualtek’s method of calculating bonuses, complaining “[t]his is the
[second] year that I have been shorted on the correct bonus payout, compared to what [percentages]
were paid to other employees and my counterparts.”83 Vice President Trybula responded bonuses
are discretionary and the 2019 bonuses were paid at a reduced amount based on the overall
performance of the company.84
Vice President Trybula, Vice President of Finance Conn, and Director of Finance
Kemmerer (Ms. Carlson’s supervisor) spoke with Ms. Carlson on January 24, 2020 as a follow-up
to her email questioning her bonus.85 A memorandum of their talk drafted by Vice President
Trybula reports telling Ms. Carlson the company, especially Velocitel, did not hit its 2019 targets.86
Ms. Carlson denies this fact, objecting to Qualtek’s failure to produce a corporate financial
document to support lower-than-expected targets for 2019 and producing a document she identifies
as a “cash flow analysis” for 2019.87 The document Ms. Carlson purports to be a “cash flow
analysis” for 2019 is a March 31, 2022 press release announcing Qualtek’s fourth quarter and
annual 2021 financial results.88 She also cites Director Kemmerer’s deposition testimony he did
not, in his opinion, believe Qualtek’s 2019 performance would make it a “stretch” to pay out
bonuses.89
Qualtek reassigns Ms. Carlson to a new financial reporting role and restructures
the Finance Team in January 2020.
Ms. Carlson handled the finance side of an AT&T contract.90 Qualtek lost the AT&T “turf
contract,” a Velocitel customer in Minnesota at some time not identified by the parties. By 2019,
Velocitel’s financial reporting became integrated into Qualtek’s shared services system.91 Ms.
Carlson no longer had integration work but she remained responsible for weekly financial
reporting “across the markets in which she was designated,” monthly reporting for journal entries
for accounting purposes, and monthly reporting to corporate, executive level financial and
operational meetings, and management of a small team of employees.92
Ms. Carlson concedes Qualtek eliminated all Finance Manager positions in early 2020,
including her position as Finance Manager.93 Qualtek reassigned Ms. Carlson to a new financial
reporting role on January 21, 2020 on Director Kemmerer’s recommendation.94 Ms. Carlson
considered the new position a demotion.95 But she does not dispute her salary remained the same.96
Qualtek restructures the Finance Team and terminates
Ms. Carlson’s employment on January 31, 2020.
Qualtek Vice President of Finance Conn announced a restructuring of the wireless
corporate finance team on January 31, 2020.97 Qualtek also terminated Ms. Carlson’s employment
on the same day.98 Qualtek also transitioned Kayla Lorenzen (who sent the January 24, 2020 email
regarding bonus issues) “to a role supporting National Billing/Unbilled efforts for Wireless” as
part of restructuring the Finance Team.99
Ms. Carlson filed a charge of discrimination with the EEOC and then sues.
Ms. Carlson filed a charge of discrimination with the EEOC on April 15, 2020.100 She
alleged discrimination based on sex, retaliation, and a violation of the Equal Pay Act beginning
March 30, 2018 to the date of her termination on January 31, 2020.
Ms. Carlson sued Qualtek on January 11, 2022, later amending her complaint. She alleges
Qualtek: (1) retaliated against her for opposing sex-based discrimination in violation of Title VII;
(2) violated Pennsylvania’s Wage Payment and Collection Law; (3) violated the Equal Pay Act;
and (4) retaliated for complaining about unequal pay in violation of the Equal Pay Act.101
II. Analysis
Qualtek moved for summary judgment on all claims.102 We held oral argument where Ms.
Carlson: (1) clarified her Title VII claim is based on a retaliation theory only, not a disparate
treatment claim based on gender;103 (2) limited her Pennsylvania Wage Payment and Collection
Law claim to her 2018 bonus only; and, (3) withdrew her Equal Pay Act claim. Remaining for our
review, then, are Ms. Carlson’s claims for Title VII retaliation; a Pennsylvania Wage Payment and
Collection Law claim for her 2018 bonus only; and an Equal Pay Act retaliation claim. We grant
Qualtek’s motion for summary judgment.
A. Ms. Carlson fails to adduce evidence of pretext to proceed to trial on her Title
VII and Equal Pay Act retaliation claims.
Ms. Carlson claims Qualtek retaliated against her by failing to promote her, failing to pay
her full bonus, and terminating her after she complained on October 10, 2019 about Mr. Neff’s
promotion to a Director position and on January 24, 2020 about gender-based bonus discrepancies
in violation of Title VII and the Equal Pay Act.
Congress in Title VII makes it unlawful for an employer to retaliate against an employee
for opposing “any practice made an unlawful employment practice by this subchapter.”104
Congress in the Equal Pay Act makes it unlawful for an employer to retaliate against an employee
in the form of “discharge or in any manner discriminate against any employee because such
employee has filed and complaint or instituted or caused to be instituted any proceedings under or
related to this chapter.”105
We analyze retaliation claims under both Title VII and the Equal Pay Act in the same way
under the McDonnell Douglas106 burden-shifting framework.107 Ms. Carlson must first establish a
prima facie case of retaliation. To establish a prima facie case, Ms. Carlson must point to evidence:
(1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) there
is a causal connection between her protected activity and the adverse employment action.108 If Ms.
Carlson meets this burden, the burden shifts to Qualtek to provide a legitimate, non-retaliatory
reason for the adverse employment actions. If it does so, the burden shifts back to Ms. Carlson “to
convince the factfinder both that the employer’s proffered explanation was false [that is, a pretext],
and that retaliation was the real reason for the adverse employment action.”109
Qualtek conceded at oral argument this is a pretext case.110 It cites legitimate non-
retaliatory reasons for each of the three challenged adverse actions. Its reasons include the
discretionary nature of the bonuses set by a written contract. We also recognize the written
contract cannot be amended absent consent in writing.; Ms. Carlson’s failure to promote claim
fails because Qualtek requires finance directors to be located in Pennsylvania for work in its King
of Prussia headquarters; and Ms. Carlson’s termination claim fails because Qualtek’s Finance
Team restructuring in January 2020 eliminates Ms. Carlson’s position.
Ms. Carlson contends these reasons are pretext for Qualtek’s retaliation against her for
complaining about gender-based disparities in failing to promote her to a Director position,
disparities in bonuses, and in terminating her. To meet her burden of showing pretext, Ms. Carlson
“must point to some evidence, direct or circumstantial, from which a factfinder could reasonably
either (1) disbelieve [Qualtek’s] articulated legitimate reasons; or (2) believe that an invidious
[retaliatory] reason was more likely than not a ... determinative cause of [Qualtek’s] action.”111
Ms. Carlson “‘cannot simply show [Qualtek’s] decision was wrong or mistaken’ but rather ‘must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in
[Qualtek’s] proffered legitimate reason for its action that a reasonable factfinder could rationally
find them unworthy of credence, and hence infer … [Qualtek] did not act for [the asserted]
nondiscriminatory reasons.’”112 Our role is not to question the wisdom on Qualtek’s internal
decisions including whether it should change its policies on Pennsylvania employees or criticize
its restructuring. We instead focus on whether Qualtek’s reasons provided to Ms. Carlson for
failing to promote, bonus disparities, and terminating her are pretext for its real reasons for these
adverse actions: to retaliate against her for protected activity as a Qualtek employee.
We need to first define the protected activity which Ms. Carlson claims led to Qualtek’s
actions. We then analyze what happened to Ms. Carlson and when it happened. We then examine
the adduced evidence to see if Ms. Carlson can show basis for us to disbelieve Qualtek’s business
reason or find an invidious retaliatory reason is more likely the determinative cause of the adverse
action.
1. Ms. Carlson offers no evidentiary basis Qualtek’s decision to not
promote her to a Pennsylvania Director position is pretext for
retaliation following her October 10, 2019 complaint to Human
Resources Director Petzar about Mr. Neff’s promotion.
Ms. Carlson swore she complained to Human Resources Director Petzar on October 10,
2019 about Qualtek’s failure to promote her to a Director position based on her gender.113
Although Human Resources Director Petzar swore she does not remember Ms. Carlson
complaining about gender-based failure to promote, we will assume Ms. Carlson complained about
gender bias; a protected activity.
We now need to find an adverse employment action arising from her October 10, 2019
complaint. At oral argument we asked Ms. Carlson’s counsel to identify the adverse employment
action Ms. Carlson suffered after the October 10, 2019 protected activity, the second prong of the
prima facie case. Counsel identified Qualtek’s failure to promote her in November 2019 when Ms.
Carlson applied for an open Director position. Ms. Carlson’s counsel argued the failure to promote
her to Director hampered her ability to earn more in wages and bonuses and prevented her from
reaching the status of Director.
We are skeptical Ms. Carlson satisfies her burden at the prima facie stage to show an
adverse action in temporal proximity to her October 10, 2019 complaint. The record shows when
Ms. Carlson applied for an open Director position around November 26, 2019, both Human
Resources Director Petzar and Recruiting Director Webb told her the position required her to be
in King of Prussia. After she asked Recruiting Director Webb if Qualtek would consider hiring her
to the position despite her location in Minnesota, Recruiting Director Webb confirmed the position
required work at Qualtek’s King of Prussia headquarters. Ms. Carlson did not pursue the position
because she would not relocate to Pennsylvania, having purchased a home in Minnesota. The
record shows Ms. Carlson did not pursue her interest in the Director position after learning the
position required working at Qualtek’s headquarters in King of Prussia, a decision she made and
not an adverse employment action taken by Qualtek.
But even if the November 2019 “failure” to promote her is an adverse action, Ms. Carlson
does not adduce evidence of a causal connection by an unusually suggestive temporal proximity
between her October 2019 complaint and the November 2019 “failure” to promote or evidence of
a pattern of antagonism or retaliatory animus coupled with timing.114 Our Court of Appeals
considers temporal proximity of two days is unusually suggestive of causation but a temporal
proximity of greater than ten days requires supplementary evidence of retaliatory motive.115 Ms.
Carlson offers neither unusually suggestive temporal proximity or “timing plus other evidence” to
show a retaliatory motive at the prima facie stage.
But even if Ms. Carlson met her burden to establish a prima facie case of retaliation, she
cannot show Qualtek’s reason for failing to promote her in November 2019 is pretextual. The
record shows Qualtek required the finance Director position to be located at its headquarters in
King of Prussia. The record shows Ms. Carlson knew Qualtek required the Director to be located
in King of Prussia. Ms. Carlson asked Recruiting Director Webb if Qualtek “would consider
anyone outside of the Qualtek [King of Prussia] office?”116
Ms. Carlson contends the location requirement is a pretext for retaliation. She argues she
had been doing the same job from Minnesota; her supervisor Director Kemmerer testified in his
opinion there is no reason why Ms. Carlson couldn’t continue to perform her work from
Minnesota; and the 2018 Personnel Action Notice completed by former Velocitel CFO Busky
recommended she be promoted to a Director position. But there is no evidence either Director
Kemmerer or former CFO Busky were the decisionmakers in hiring for the November 2019 open
Director position. Ms. Carlson’s entire argument is because non-decisionmakers recommended
her for a Director position in 2018 while she resided in Minnesota—a recommendation never
approved by a Qualtek decisionmaker—Qualtek added the requirement to work in King of Prussia
after she “was already performing the job” and is pretext for retaliation in November 2019.117 Ms.
Carlson testified she knew the Director position posted in November 2019 required work at the
King of Prussia headquarters.118 There is no evidence Qualtek hired anyone—man or woman—to
a Director position outside of its King of Prussia headquarters. In fact, the two men hired by
Qualtek in Director positions—Mr. Neff and Mr. Ebeling—both worked in the King of Prussia
office.119 Ms. Carlson fails to point to evidence to either disbelieve Qualtek’s requirement a
Director be located at its King of Prussia headquarters or believe an invidious retaliatory reason is
more likely than not a determinative cause of Qualtek’s failure to hire her to a Director position in
November 2019. There is no evidence of “weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions” in Qualtek’s proffered legitimate reason for its action to allow a
reasonable factfinder to rationally find its reason “unworthy of credence” and to infer Qualtek did
not act for non-retaliatory reasons.120 Ms. Carlson’s best reasons during oral argument challenged
the wisdom of Qualtek’s policy of requiring these positions be managed in Pennsylvania and
suggesting the job could be done just as well in Minnesota. Maybe she is right. But our concern is
not the wisdom of Qualtek’s internal processes or business judgment in managing its financial
team. Our concern is whether Ms. Carlson can cite credible evidence Qualtek failed to promote
her in November 2019 as retaliation for her October 2019 complaint. Ms. Carlson offers none.
We grant Qualtek’s motion for summary judgment on Ms. Carlson’s retaliation claims as
she offers no basis for us to find Qualtek’s policy of requiring its Finance Directors work in its
home offices in Pennsylvania is pretext for retaliation against her following her October 10, 2019
complaint.
2. There is no basis to find the Finance Team restructuring resulting in
terminating Ms. Carlson is pretext for retaliation for Ms. Carlson’s
January 24, 2020 email echoing Kayla Lorenzen’s concerns about
gender-based disparities in bonus payments.
Ms. Carlson claims Qualtek fired her on January 31, 2020 as retaliation for her January 24,
2020 email complaining about the amount of her 2019 bonus “echoing” Ms. Lorenzen’s concerns
about gender-based disparities in bonus payments as protected activity. Qualtek terminated Ms.
Carlson one week after her January 24, 2020 email.
For purposes of our analysis, we again assume Ms. Carlson meets her burden of
establishing a prima facie case of retaliation: Her January 24, 2020 email constitutes protected
activity, Qualtek terminated her employment, and there is a causal connection between the January
24, 2020 email and her termination a week later.121
Qualtek contends it terminated Ms. Carlson because of a company restructure of the
Wireless Corporate Finance Team and her inability to meet the company’s current needs.122
Qualtek believed Ms. Carlson’s perceived lack of skills “put her in this role where the business
didn’t really see a need for the way that the finance wanted to be structured going forward.”123 It
cites an email from Vice President of Finance Conn to the Finance Team explaining the restructure
sent the same day as terminating Ms. Carlson.124 Vice President Conn’s email confirms Qualtek
did not terminate Ms. Lorenzen even though she is the person who first complained about gender-
based discrepancies in bonuses.125 Vice President Conn swore he, the finance team, and his “boss”
had a goal to “ultimately have a specific team, corporate finance team in King of Prussia … and
“[i]t’s what worked in the past, it’s what I—the team I wanted to build” and “this is the direction
we wanted to go as we were growing and creating a corporate finance team, having a team in King
of Prussia.”126 Qualtek also asserts, and Ms. Carlson concedes, it eliminated all Finance Manager
positions (the position she held until January 21, 2020) and re-assigned her to a new financial
reporting role.127 Qualtek asserts the restructuring affected at least sixteen other employees and
Ms. Carlson does not dispute it.128
Ms. Carlson responds Qualtek has “not one document, corporate or otherwise, reflecting,
referencing, or relating to any ‘reorganization’ which resulted in the termination of anyone else
but [her].”129 Ms. Carlson argues Qualtek’s January 31, 2020 Finance Team restructuring is a
pretext for retaliation against her because no other employee lost a job in the restructuring and,
because Qualtek is a “public company,” restructuring of the Finance Team “should trigger some
paperwork” but there is none.
Ms. Carlson does not adduce facts or otherwise misunderstands the material facts. Qualtek
was not then a public company.130 And Ms. Carlson does not offer evidence Qualtek must, or has,
provided advance notice of Finance Team (or any other division or team) restructurings. She baldly
argues the Finance Team restructuring reason is not credible and Vice President Conn’s January
31, 2020 email regarding restructuring is of no evidentiary value and we must deny summary
judgment. She looks for a jury and argues the wisdom of Qualtek’s business judgment; she
seemingly would do it differently. But she is not the employer. Ms. Carlson fails to cite evidence
Qualtek’s restructuring of the Finance Team is a pretext; her entire argument is she is the only
employee who lost her job and there are no documents or “paperwork” evidencing a restructure
except the email on the same day announcing the Finance Team restructure. She contends wholly
out of an undisclosed source of corporate experience it is not credible for a company to restructure
a Finance Team without some preview documents. We are aware of no such obligation upon an
employer and can appreciate corporate security reasons why there may not be advance notice
particularly involving Finance Team obligations and the slippery nature of financial data
maintained on remote data systems accessed from anywhere. Ms. Carlson then drops back to her
old colleague Director Kemmerer who had been very complimentary about her financial skills.
But Director Kemmerer testified he is not the decisionmaker in Ms. Carlson’s termination.131 And
there is no evidence Director Kemmerer played any role in the Finance Team restructuring
decision.
Ms. Carlson must point to evidence to either disbelieve her termination is a result of the
Finance Team’s restructuring or believe an invidious retaliatory reason is more likely than not a
determinative cause of her termination. Vice President Conn swore to the decision to restructure
Qualtek’s finance team. There is no evidence of “weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions” in Qualtek’s proffered legitimate reason for its action to allow a
reasonable factfinder to rationally find its reason “unworthy of credence” and to infer Qualtek did
not act for non-retaliatory reasons.
We grant summary judgment in favor of Qualtek on Ms. Carlson’s claim Qualtek
terminated her through a restructuring of the Finance Team as retaliation for “echoing” another
employee’s concerns when, as is not disputed, Qualtek retained the employee making the
complaint.
3. Ms. Carlson adduces no evidence of a causal nexus between her
October 24, 2019 or January 24, 2020 protected activity and retaliation
through bonus disparities in 2018 and 2019.
Ms. Carlson also claims Qualtek’s failure to pay her full potential bonus in 2018 and 2019
violates both Title VII and the Equal Pay Act. Qualtek responds bonuses were always
discretionary.
a. Ms. Carlson offers no protected activity before the 2018 bonus
decision.
When pressed for the timing of her protected activity relevant to her retaliation claims, Ms.
Carlson conceded at oral argument she did not complain about bonus disparities based on gender
until October 10, 2019.132 By that time, Qualtek had already determined her bonus—which she
contends is erroneous—and paid it in two installments in December 2018 and June 2019.133 There
is no record of protected activity before October 10, 2019. We enter summary judgment in favor
of Qualtek on Ms. Carlson’s Title VII and Equal Pay Act claims regarding her 2018 bonus.
b. Ms. Carlson offers no evidence the 2019 bonus decision is
causally connected to protected conduct.
We turn to Ms. Carlson’s 2019 bonus. Qualtek awarded Ms. Carlson a $2,875 bonus around
January 24, 2020.134 Ms. Carlson emailed Vice President of Human Resources Trybula to “echo”
Ms. Lorenzen’s concerns about gender-based bonus discrepancies and to inquire “how [bonuses]
were fairly calculated and determined that one person qualifies for a higher payout than another.
This is the [second] year that I have been shorted on the correct bonus payout, compared to what
[percentages] were paid to other employees and my counterparts.”135 Vice President Trybula
responded the 2019 bonuses are discretionary and paid at a reduced amount because of Qualtek’s
overall performance.136
Ms. Carlson contends her “shorted” 2019 bonus is in retaliation for her complaints of
gender bias in promotion and bonus payments. But by January 24, 2020, Qualtek had already
determined and awarded her 2019 bonus; indeed, Ms. Carlson’s January 24, 2020 email
complained about the 2019 bonus. Ms. Carlson’s email to Vice President Trybula on January 24,
2020—even if we construe Ms. Carlson’s “echoing” of Ms. Lorenzen’s gender-based bonus
discrepancies—came after the 2019 bonus had already been determined and awarded. We cannot
see how the calculation of the 2019 bonus could be in retaliation for Ms. Carlson’s January 24,
2020 email to Vice President Trybula. This leaves us with only one other instance of protected
activity—the October 10, 2019 complaint to Director of Human Resources Petzar three months
earlier. As fully analyzed, Ms. Carlson must meet her burden at the prima facie stage to point to
evidence of a causal connection between her October 10, 2019 complaints about gender-based
promotion discrimination and the 2019 bonus awarded on January 24, 2020. Ms. Carlson may
meet this burden by pointing to evidence of an unusually suggestive temporal proximity or
evidence of a pattern of antagonism or retaliatory animus coupled with timing. She fails to cite
such evidence and does not carry her burden of proving a prima facie case of Title VII or Equal
Pay Act retaliation.
But even if Ms. Carlson met her burden to establish a prima facie case of retaliation as to
her bonuses, she fails to meet her burden of showing pretext. Qualtek’s asserted reason for paying
only a portion of her potential bonus is the discretionary nature of bonuses and the company’s
performance. Ms. Carlson fails to cite evidence of retaliatory animus as the real reason for her
2019 bonus as a result of her January 24, 2020 complaint or her October 10, 2019 complaint about
being passed over for promotion. Ms. Carlson instead cites to a chart she prepared for her EEOC
complaint showing Qualtek paid men a higher percentage of bonus than women.137 But this is not
the basis of Ms. Carlson’s Title VII and Equal Pay Act retaliation claims. Her amended Complaint
alleges Qualtek retaliated against her by paying her less in bonus than Mr. Neff and Mr. Ebeling.138
Her chart does not include Mr. Neff or Mr. Ebeling, who hold Director positions different than
her.139 Ms. Carlson fails to connect the dots between her January 24, 2020 email to Vice President
Trybula and her 2019 bonus. We enter summary judgment in favor of Qualtek.
B. Ms. Carlson fails to meet her burden on the Wage Payment and Collection
Law claim.
Ms. Carlson contends Qualtek’s failure to pay her 2018 bonus is a violation of
Pennsylvania’s Wage Payment and Collection Law.140 Pennsylvania’s General Assembly through
the Wage Act “provides employees a statutory remedy to recover wages and other benefits that are
contractually due to them.”141 Bonuses are included in the term “wages” defined as “all earning of
an employe[e].”142
To recover under Pennsylvania’s Wage Act, an employee “must aver a contractual
entitlement ‘to compensation from wages’ and a failure to pay that compensation.”143 Absent a
formal employment contract or collective bargaining agreement, an employee must establish “at a
minimum, an implied oral contract between the employee and the employer” to recover under the
Act.144 “A promise to pay for services can only be implied, however, in circumstances under which
the party rendering the services would be justified in entertaining a reasonable expectation of being
compensated by the party receiving the benefit of those services.”145 To maintain a wage payment
claim under the Act, Ms. Carlson must demonstrate her contractual entitlement to the 2018 bonus.
The burden is on Ms. Carlson “to prove that the bonus is ‘earned,’ i.e. that the right to the … bonus
vested under the terms of employment.”146
Qualtek argues as a threshold matter, Pennsylvania’s Wage Act does not apply to Ms.
Carlson who did not work for Qualtek in Pennsylvania.147 It alternatively argues even if she
worked in Pennsylvania, her claim fails because she had no contractual right to the discretionary
bonuses. Qualtek contends the 2018 bonus is discretionary, citing the November 2017 and March
2018 offer letters stating Ms. Carlson had a bonus “potential” of up to $20,000, not a guaranteed
bonus.
Ms. Carlson concedes the language of the March 2018 offer letter describes a “potential”
bonus. But at oral argument Ms. Carlson contended the bonus lost its discretionary nature and
became a contractual “award” when her supervisor Director Kemmerer complained on her behalf
about the bonus to Qualtek’s Vice Presidents Conn and Trybula.
The record confirms, after Director Kemmerer raised the bonus issue, Vice Presidents
Conn and Trybula “acknowledged that, okay, yeah, there was a change that was not accurately
reflected in ADP at that time,” referring to the change in potential bonus to $20,000, and “they
both acknowledged that, yes, it should have been changed.”148 After Ms. Carlson again told
Director Kemmerer Qualtek had not corrected the bonus error, he again spoke to Vice President
Trybula who acknowledged the bonus error had not been corrected.149 Director Kemmerer testified
he sent an email to Vice President Trybula to notify her he “didn’t see the change” to Ms. Carlson’s
potential bonus amount “in the system.”150 Director Kemmerer testified “[i]t’s just a matter of, you
know, is there something that’s going to be updated in the system, because it was my understanding
that any kind of bonus that was calculated to be paid out was discretionary in nature and whatever
her total amount or total expected amount was, that, you know, may or may not have been different
from what ADP was showing was not necessarily relevant for that calculation.”151 Director
Kemmerer testified Vice President Trybula acknowledged the information in the system is
“incorrect.”152
There is no dispute the March 2018 offer letter made a bonus discretionary: a “potential
bonus eligibility … [of] $20,000.”153 The March 2018 offer letter provides: “The terms of your
employment may in the future be amended, but only with written authorization, which is signed
by both you and, the Chief Administrative Officer on behalf of the Company, and approved by the
Chairman of the Board.”154 But there is no evidence of an oral promise to pay Ms. Carlson a
$20,000 bonus modifying the terms of the written March 2018 offer letter.
Under Pennsylvania law, “[a] written contract which is not for the sale of goods may be
modified orally, even when the written contract provides that modifications may only be made in
writing.”155 An agreement prohibiting non-written modifications “may be modified by subsequent
oral agreements if the parties’ conduct clearly shows the intent to waive the requirement that the
agreements be made in writing” and the existence of an oral contract modifying an earlier written
contract “must be proved by clear, precise and convincing evidence.”156 Ms. Carlson fails to
provide evidence, let alone clear and convincing evidence, of Qualtek’s intent to waive the written
authorization requirements of the March 2018 offer letter.
Even if we considered Ms. Carlson’s argument Vice Presidents Conn and/or Trybula’s
statements recognized an error “in the system,” they did not form a promise to pay her a full
$20,000 bonus for 2018 or amend the written contract. Director Kemmerer’s testimony is Vice
President Conn and Trybula acknowledged an error in the amount of potential bonus listed in the
ADP system. This is not a promise to pay $20,000, but a recognition the system did not accurately
reflect the 2018 potential bonus range of up to $20,000. There is no evidence of an oral promise
by Qualtek to pay Ms. Carlson a full $20,000 in bonus for 2018. We enter judgment in favor of
Qualtek.
III. Conclusion
Ms. Carlson did not adduce evidence allowing us to find a genuine issue of material fact
concerning the legitimacy of Qualtek’s decisions to not promote her to a Director position in
Pennsylvania, the calculation of her 2018 or 2019 bonuses, or terminating her when it restructured
the Finance Team. She presents jury arguments hoping to invoke sympathy loosely based on
unrelated facts and her views as to how Qualtek should be managed. But she does not show
retaliation under Title VII or The Equal Pay Act. She also shows no evidence of Qualtek modifying
the contractual terms of her employment including a potential bonus up to $20,000 in Qualtek’s
discretion somehow turning into a guaranteed bonus of $20,000. We grant Qualtek’s motion for
summary judgment.
1 Our Policies require parties moving for relief under Fed. R. Civ. P. 56 include a Statement of
Undisputed Material Facts (“SUMF”) and an appendix to support summary judgment. Qualtek
filed its Motion and brief in support of summary judgment at ECF Doc. No. 27, 27-2; SUMF at
ECF Doc. No. 27-3; and Appendix at ECF Doc. No. 31. Ms. Carlson filed a response brief at ECF
Doc No. 28 which we struck as non-compliant with our policies and procedures with leave to file
an amended opposition (ECF Doc. No. 29). Ms. Carlson filed an amended opposition brief at ECF
Doc. No. 32-3 which we again struck as non-compliant with our policies and procedures (ECF
Doc. No. 34). Ms. Carlson did not refile a compliant opposition brief. Ms. Carlson responded to
Qualtek’s SUMF at ECF Doc. No. 35 and her own Statement of Undisputed Material Facts at ECF
Doc. No. 35-1. She filed a supplemental Appendix at ECF Doc. No. 35-2 which is not Bates-
stamped.
2 ECF Doc. No. 27–3, Qualtek SUMF ¶¶ 19–20, 22; ECF Doc. No. 31, Appendix 4a, amended
Complaint at ¶ 11. During Ms. Carlson’s employment with Qualtek, its offices were located in
King of Prussia, Pennsylvania. Its offices are currently located in Blue Bell, Pennsylvania.
3 ECF Doc. No. 27–3, Qualtek SUMF ¶ 2.
4 Id., Qualtek SUMF ¶¶ 33–34, 37; ECF Doc. No. 31, Appendix 50a–51a. The November 19, 2017
offer letter provides: “In the event a dispute does arise regarding your employment with the
Company, including any validity interpretation, construction and performance of this letter, said
dispute shall be governed by and construed in accordance with the substantive laws of the
Commonwealth of Pennsylvania without regard to any conflict of law. Jurisdiction for resolution
of any dispute shall be solely in the Eastern District of Pennsylvania. The terms of your
employment may in the future be amended, but only with written authorization, which is signed
by both you and, the Chief Administrative Officer on behalf of the Company, and approved by the
Chairman of the Board.” ECF Doc. 31, Appendix 51a.
5 ECF Doc. No. 27–3, Qualtek SUMF ¶ 9. In Qualtek’s SUMF at ¶ 9, it asserts Ms. Carlson does
not hold a bachelor’s degree. In Ms. Carlson’s initial response, ultimately struck for non-
compliance with our Policies and Procedures, she admitted this assertion. See ECF Doc. No. 28–
2, Response to Qualtek SUMF ¶ 9. After filing an amended response, Ms. Carlson denied she does
not have a bachelor’s degree, citing the Equal Employment Opportunity Commission’s
determination of her charge. See ECF Doc. No. 35, Response to Qualtek SUMF ¶ 9.
6 Id., Qualtek SUMF ¶¶ 35–37.
7 Id., Qualtek SUMF ¶ 36.
8 Id.
9 Id., Qualtek SUMF ¶ 38.
10 Id., Qualtek SUMF ¶ 25.
11 Id., Qualtek SUMF ¶¶ 26–27.
12 Id., Qualtek SUMF ¶ 28.
13 Id., Qualtek SUMF ¶ 30; ECF Doc. No. 31, Appendix 139a, Deposition of E. Downey at 19.
14 ECF Doc. No. 36, Supplemental Appendix at 21, Affidavit of D. Freedman ¶ 11.
15 Id., Qualtek SUMF ¶¶ 11–12; ECF Doc. No. 31, Appendix 138a–139a, Deposition of E. Downey
at 18–19.
16 ECF Doc. No. 31, Appendix 213a–214a, Deposition of S. Trybula at 50–51. Ms. Carlson denies
Qualtek’s factual assertion it functions under a shared services model. See ECF Doc. No. 35,
Response to Qualtek SUMF ¶¶ 10–12. Ms. Carlson admits Qualtek’s documents show it functions
under a vertically integrated shared services model but denies its shared services operates
exclusively in King of Prussia. She cites a report from a website, www.opencorporates.com,
referring to a “QualTek Wireless LLC branch” showing there is a “branch” of the entity in
Minnesota and a “head office address” in Blue Bell, Pennsylvania. See Supplemental Appendix at
36 at 16–19. Ms. Carlson’s Supplemental Appendix is not Bates-stamped in violation of our
policies and procedures and our Orders at ECF Doc. Nos. 29, 34. References to the Supplemental
Appendix are to the pagination assigned by the CM/ECF docketing system. This does nothing to
show a dispute of material fact Qualtek’s headquarters is in Pennsylvania. Ms. Carlson also argues
Chief Administrative Officer Elizabeth Downey testified there is no document “reflecting that
corporate finance employees must be employed through the Pennsylvania office” and the absence
of any such document somehow creates an issue of material fact. See ECF Doc. No. 35, Response
to Qualtek SUMF ¶ 10. But we have the testimony of Qualtek’s Chief Administrative Officer
Downey and Vice President of Human Resources Stefanie Trybula swearing to the shared services
model located at Qualtek’s headquarters in Pennsylvania. This sworn testimony is uncontroverted
by evidence adduced by Ms. Carlson and she fails to meet her burden under Federal Rule of Civil
Procedure 56.
17 ECF Doc. No. 31, Appendix 61a–62a.
18 Id., Appendix 58a.
19 ECF Doc. No. 27–3, Qualtek SUMF ¶ 39.
20 Id., Supplemental Appendix at 23, Affidavit of L. Carlson ¶ 7.
21 Id., Qualtek SUMF ¶ 40.
22 ECF Doc. No. 36, Supplemental Appendix at 21, Affidavit of D. Freedman ¶¶ 6–7.
23 ECF Doc. No. 31, Appendix 359a. Someone modified the Personnel Action Notice by crossing
out the “Director FPA” position and changing it to “Finance MGR”; increasing the annual salary
from $102,000 to $105,000; and checking off the “bonus eligible” box in the amount of $20,000.
Id. There is no evidence in the record definitively identifying who modified the Personnel Action
Notice.
24 ECF Doc. No. 27–2, Qualtek SUMF ¶¶ 47–49; ECF Doc. No. 31, Appendix 56a.
25 ECF Doc. No. 31, Appendix 56a.
26 ECF Doc. No. 27–3, Qualtek SUMF ¶ 59; ECF Doc. No. 31, Appendix 117a–123a.
27 ECF Doc. No. 27–3, Qualtek SUMF ¶¶ 65–66, 69.
28 Id., Qualtek SUMF ¶¶ 65–66.
29 ECF Doc. No. 35–1, Carlson SUMF ¶¶ 84–85.
30 ECF Doc. No. 31 at 31a.
31 ECF Doc. No. 35–1, Carlson SUMF ¶ 86.
32 ECF Doc. No. 31, Appendix 331a–332a, Deposition of S. Kemmerer at 22–23.
33 Id.
34 Id., Appendix 333a, Deposition of S. Kemmerer at 24.
35 Id.
36 ECF Doc. No. 28–7 at 25, Deposition of S. Kemmerer at 25. We note the appendix prepared by
Qualtek omits page 25 of Mr. Kemmerer’s deposition. Ms. Carlson included it in her initial
supplemental appendix we struck as non-compliant with our Policies for, among other issues,
failure to Bates stamp it. See ECF Doc. No. 28-7. We were left to cull out one page of Mr.
Kemmerer’s deposition from ECF Doc. No. 28–7, now stricken, to ensure a full record. We remind
counsel our policies and procedures, including of a fulsome Bates-stamped appendix, are not
random requirements but procedures to ensure a clear record of relevant evidence on summary
judgment.
37 ECF Doc. No. 31, Appendix 334a, Deposition of S. Kemmerer at 26. We assume the reference
to “ADP” is to ADP, Inc., a business offering technology, data analytics, and strategic guidance in
human resources management including payroll. See www.adp.com.
38 Id.
39 ECF Doc. No. 31, Appendix 335a, Deposition of S. Kemmerer at 27.
40 Id., Appendix 335a–336a, Deposition of S. Kemmerer at 27–28.
41 Id., Appendix 336a, Deposition of S. Kemmerer at 28.
42 Id.
43 Id., Appendix 337a, Deposition of S. Kemmerer at 29.
44 ECF Doc. No. 27–3, Qualtek SUMF ¶ 68; ECF Doc. No. 35, Response to Qualtek SUMF ¶ 68.
45 ECF Doc. No. 27–3, Qualtek SUMF ¶ 70; ECF Doc. No. 31, Appendix 65a.
46 ECF Doc. No. 31, Appendix 65a.
47 ECF Doc. No. 27–3, Qualtek SUMF ¶ 71.
48 Id., Qualtek SUMF ¶¶ 69, 72.
49 Id., Qualtek SUMF ¶ 73; ECF Doc. No. 31, Appendix 75a.
50 ECF Doc. No. 27–3, Qualtek SUMF ¶ 76.
51 Id., Qualtek SUMF ¶ 77; ECF Doc. No. 31, Appendix 171a, Deposition of E. Downey at 61.
52 ECF Doc. No. 27–3, Qualtek SUMF ¶ 79; ECF Doc. No. 35, Response to Qualtek SUMF ¶ 79.
Ms. Carlson denies she complained to Director Petzar about Mr. Ebeling because he had not yet
been hired. See ECF Doc. No. 35, Response to Qualtek SUMF ¶ 79. This is incorrect. The record
shows Qualtek extended an offer of employment to Mr. Ebeling on October 1, 2019. See ECF Doc.
No. 31, Appendix 75a–76a. Mr. Ebeling accepted the offer of employment on October 10, 2019.
Id. Ms. Carlson seems to be referring to Qualtek’s failure to promote her to a Director position in
March 2018 when former Velocital Chief Financial Officer Busky completed the Velocitel
“Personnel Action Notice” checking off her promotion to Director later altered by an unknown
person who changed the position from Director to Finance Manager. Ms. Carlson did not complain
about the change from CFO Busky’s recommendation to the Director position to the Finance
Manager position in 2018.
53 ECF Doc. No. 35, Response to Qualtek SUMF ¶¶ 78–79.
54 ECF Doc. No. 27–3, Qualtek SUMF ¶ 86; ECF Doc. No. 31, Appendix 99a–101a.
55 ECF Doc. No. 31, Appendix 101a.
56 Id., Appendix 100a–101a.
57 ECF Doc. No. 35, Response to Qualtek SUMF ¶ 85.
58 ECF Doc. No. 35-1, Carlson SUMF ¶¶ 71–72; ECF Doc. No. 31, Appendix 419a–420a,
Deposition of L. Carlson.
59 ECF Doc. No. 27–3, Qualtek SUMF ¶ 88.
60 ECF Doc. No. 31, Appendix 86a.
61 Id., Appendix 85a–86a.
62 Id., Appendix 85a.
63 Id., Appendix 88a.
64 Id., Appendix 87a.
65 Id., Appendix 89a.
66 ECF Doc. No. 27–3, Qualtek SUMF ¶ 90; ECF Doc. No. 35, Response to Qualtek SUMF ¶¶
89–90.
67 ECF Doc. No. 31, Appendix 444a, L. Carlson deposition at 84.
68 Id.
69 Id., Appendix 444a–445a, L. Carlson deposition at 84–85.
70 Id.
71 Id.
72 ECF Doc. No. 27–3, Qualtek SUMF ¶ 95.
73 Id., Qualtek SUMF ¶ 96.
74 ECF Doc. No. 31, Appendix 105a.
75 Id.
76
77 Id.
78 Id., Appendix 104a–105a.
79 Id., Appendix 107a.
80 Id.
81 Id., Appendix 106a.
82 Id.
83 Id., Appendix 104a.
84 Id.
85 ECF Doc. No. 31, Appendix 93a.
86 Id.
87 ECF Doc. No. 35, Response to Qualtek SUMF ¶ 93; ECF Doc. No. 35–2, Supplemental
Appendix at 45.
88 ECF Doc. No. 35–2, Supplemental Appendix at 45.
89 ECF Doc. No. 28–7 at 8, Deposition of S. Kemmerer at 25.
90 ECF Doc. No. 31, Appendix 163a-164a, Deposition of E. Downey at 43–44; ECF Doc. No. 35,
Response to Qualtek SUMF ¶ 56.
91 ECF Doc. No. 31, Appendix 323a–324a, Deposition of S. Kemmerer at 14–15.
92 Id.
93 ECF Doc. No. 27–3, Qualtek SUMF ¶ 105; ECF Doc. No. 35, Response to Qualtek SUMF ¶
105.
94 ECF Doc. No. 27–3, Qualtek SUMF ¶¶ 106–107.
95 ECF Doc. No. 35, Response to Qualtek SUMF ¶ 108.
96 Id., Response to Qualtek SUMF ¶ 109.
97 ECF Doc. No. 31, Appendix 95a–96a.
98 ECF Doc. No. 27–3, Qualtek SUMF ¶ 111.
99 ECF Doc. No. 31, Appendix 95a–96a.
100 Id., Appendix 29a.
101 ECF Doc. No. 12.
102 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)). “Summary judgment is
appropriate only if, after drawing all reasonable inferences in favor of the non-moving party, there
exists ‘no genuine dispute as to any material fact’ and the movant ‘is entitled to judgment as a
matter of law.’” Moyer v. Patenaude & Felix, A.P.C., 991 F.3d 466, 469 (3d Cir. 2021) (quoting
Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 770 (3d Cir. 2018)). We do not weigh evidence
or make credibility determinations. Peroza-Benitez v. Smith, 994 F.3d 157, 164 (3d Cir. 2021)
(quoting Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019)).
“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 Pittsburgh, 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.” Id. (citing Celotex, 477 U.S. at 322–23).
103 Ms. Carlson’s response brief focuses heavily on a Title VII failure to promote and payment of
bonus disparate treatment claim despite having not pleaded such a claim in the amended
Complaint. See ECF Doc. No. 32-3. At oral argument, Ms. Carlson’s counsel clarified his response
regarding a Title VII disparate treatment claim based on gender is in error and his claim under
Title VII and the Equal Pay Act is solely for retaliation.
104 42 U.S.C. § 2000e-3(a).
105 29 U.S.C. § 215(a)(3). Section 215(a)(3) is a provision of the Fair Labor Standards Act
establishing a cause of action for retaliation against employees who assert rights under the Equal
Pay Act or the FLSA. See Third Circuit Model Jury Instruction 11.1.2, Comment.
106 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
107 Egelkamp v. Archdiocese of Phila., No. 19-3734, 2021 WL 1979422, at *9 (E.D. Pa. May 18,
2021) (citing Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017) (Title
VII retaliation); Marriott v. Audiovox Corp., No. 04-1307, 2006 WL 3805145, at *8-9 (W.D. Pa.
Dec. 22, 2006) (Equal Pay Act retaliation)). See also Briscella v. Univ. of Pa. Health System, No.
16-614, 2018 WL 6413305, at *8 (E.D. Pa. Dec. 4, 2018) (analyzing retaliation claims under Equal
Pay Act, Title VII, and Section 1981 together under the McDonnell Douglas framework).
108 Carvalho-Grevious, 851 F.3d at 257; Moore v. City of Phila., 461 F.3d 331, 340–41 (3d Cir.
2006).
109 Carvalho-Grevious, 851 F.3d at 257 (quoting Moore, 461 F.3d at 342).
110 We consequently focus our analysis today on a pretext analysis. As shown passim, we are also
not convinced Ms. Carlson meets her burden of establishing a prima facie case of retaliation under
Title VII and the Equal Pay Act. But we accept Qualtek’s argument and will analyze its motion
assuming Ms. Carlson can show evidence sufficient to establish a prima facie case of retaliation.
111Daniels v. School Dist. of Phila., 776 F.3d 181, 198–99 (3d Cir. 2015) (quoting Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
112 Id. (cleaned up) (quoting Ross v. Gilhuly, 755 F.3d 185, 194 n.13 (3d Cir. 2014)).
113 ECF Doc. No. 31, Appendix 388a–389a, Deposition of L. Carlson at 28–29.
114 See Dondero v. Lower Milford Twp., 5 F.4th 355, 361–62 (3d Cir. 2021); Lauren W. ex rel.
Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
115 Blakney v. City of Phila., 559 F. App’x 183, 186 (3d Cir. 2014) (citations omitted).
116 ECF Doc. No. 31, Appendix 87a.
117 Id., Appendix 410a, Deposition of L. Carlson at 50.
118 Id., Appendix 414a, Deposition of L. Carlson at 54.
119 Id., Appendix 61a, 75a, 402a, Deposition of L. Carlson at 42.
120 Daniels, 776 F.3d at 198–99.
121 We understand Qualtek’s position at oral argument Ms. Carlson’s January 24, 2020 email
simply “echoing” Ms. Lorenzen’s complaint regarding her bonus as based on gender bias is not
protected activity to establish a prima facie case of retaliation under Title VII or the Equal Pay
Act. We focus our analysis on pretext.
122 Id.
123 ECF Doc. No. 27–3, Qualtek SUMF ¶ 111; ECF Doc. No. 31, Appendix 95a–96a; 356a,
Deposition of S. Kemmerer at 48.
124 ECF Doc. No. 31, Appendix 95a–96a.
125 Id.
126 Id. Appendix 263a, Deposition of D. Conn at 52.
127 ECF Doc. No. 35, Response to Qualtek SUMF ¶¶ 105–107; ECF Doc. No. 31, Appendix 246a,
Deposition of D. Conn at 35.
128 ECF Doc. No. 27–3, Qualtek SUMF ¶ 112. Ms. Carlson did not responds to Qualtek’s SUMF
¶ 112. See ECF Doc. No. 32.
129 ECF Doc. No. 35, Response to Qualtek SUMF ¶ 111.
130 Although not cited in the record as far as we can determine, counsel for Qualtek at oral argument
represented Qualtek did not become a public company until 2021. Ms. Carlson’s counsel did not
dispute this representation.
131 ECF Doc. No. 31, Appendix 353a–355a, Deposition of S. Kemmerer at 45–47.
132 See also, ECF Doc. No. 35–1, Carlson SUMF ¶¶ 40–42 (“Plaintiff made this gender
discrimination complaint in mid-2019 …”).
133 ECF Doc. No. 31, Appendix 69a–70a.
134 ECF Doc. No. 27–3, Qualtek SUMF ¶ 96.
135 ECF Doc. No. 31, Appendix 104a.
136 Id.
137 ECF Doc. No. 31 at 451a–453a, Deposition of L. Carlson at 91–93.
138 ECF Doc. No. 12 ¶¶ 115, 161.
139 While this may potentially support a claim for an Equal Pay Act violation or a disparate
treatment claim under Title VII, Ms. Carlson has disavowed those causes of action. And by her
own admission, the employees listed on her prepared chart are not comparators because they “were
below” her and either reported to her or formerly reported to her. ECF Doc. No. 31 at 452a,
Deposition of L. Carlson at 92.
140 43 P.S. § 260.1, et seq. Ms. Carlson conceded at oral argument the Wage Payment and
Collection Law claim pertains only to the 2018 bonus, not the 2019 bonus.
141 Oberneder v. Link Computer Corp., 696 A.2d 148, 150 (Pa. 1997). The statute of limitations
for a Pennsylvania Wage Payment and Collection Law claim is three years after the day on which
such wages were due and payable as provided in sections” 260.3 and 260.5. See 43 P.S. §
260.9a(g). Ms. Carlson filed her original complaint on January 11, 2022. We question the
timeliness of Ms. Carlson’s claim under the Act for her 2018 bonus given her allegation her bonus
should have been higher when awarded in December 2018. Qualtek did not move for summary
judgment on this ground.
142 43 P.S. § 260.2a.
143 Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 954 (Pa. Super. Ct. 2011) (quoting Sullivan v.
Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa. Super. Ct. 2005) and Hartman v. Baker, 766
A.2d 347, 352 (Pa. Super. Ct.), appeal denied, 764 A.2d 1070 (Pa. 2000)).
144 Braun, 24 A.3d at 954 (citing DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir.
2003)).
145 Giuliani v. Polysciences, Inc., 275 F. Supp. 3d 564, 578 (E.D. Pa. 2017) (citing Oxner v.
Cliveden Nursing & Rehab. Ctr. PA, L.P., 132 F. Supp. 4d 645, 649 (E.D. Pa. 2015)).
146 Blackwell-Murray v. PNC Bank, 963 F. Supp. 2d 448, 470 (E.D. Pa. 2013) (citing Stebok v.
Am. Gen. Life & Acc. Ins. Co., 715 F. Supp. 711, 713 (W.D. Pa. 1989), aff’d, 888 F.2d 1382
(1989)).
147 Qualtek relies on McGoldrick v. True Position, Inc., 623 F. Supp. 2d 619 (E.D. Pa. 2009) for
the proposition the Act applies only to Pennsylvania-based employees. Ms. Carlson argues she
falls under the factors set out by Judge Joyner in McGoldrick to determine whether an employee
who works outside of Pennsylvania is “based in Pennsylvania” for purposes of the Act “absent a
choice of law or forum selection clause.” Id. at 631. Here, Qualtek’s offer letters to Ms. Carlson
in November 2017 and March 2018 contain a Pennsylvania forum selection clause. We will
assume for our analysis the Act applies to Ms. Carlson under the McGoldrick test.
148 ECF Doc. No. 31, Appendix 334a, Deposition of S. Kemmerer at 26.
149 Id., Appendix 335a–336a, Deposition of S. Kemmerer at 27–38.
150 Id., Appendix 336a, Deposition of S. Kemmerer at 28.
151 Id.
152 Id.
153 Id., Appendix 56a.
154 Id.
155 Somerset Community Hosp. v. Allan B. Mitchell & Associates, Inc., 685 A.2d 141, 146 (Pa.
Super. Ct. 1996) (citing Universal Builders, Inc. v. Moon Motor Lodge, Inc., 244 A.2d 10 (Pa.
1968)).
156 Id. (citing Accu–Weather v. Prospect Commc’ns, 644 A.2d 1251 (Pa. Super. Ct. 1994) and
Pellegrene v. Luther, 169 A.2d 298 (Pa. 1961)).