YOHO v. THE BANK OF NEW YORK MELLON CORPORATION

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEITH YOHO, )

)

Plaintiff, ) 2:17-cv-917-NR

)

v. )

)

THE BANK OF NEW YORK MELLON )

)

CORPORATION, et al.,

)

Defendants. )

OPINION

Defendants BNY Mellon Corporation, MSBC Securities Corporation, and the

Dreyfus Corporation1 move for summary judgment on Plaintiff Keith Yoho’s

employment-discrimination and related tort claims. ECF 82. After careful

consideration, the Court will grant Defendants’ motion, and enter judgment in favor

of Defendants on all claims.

BACKGROUND

Considering the evidence here in Mr. Yoho’s favor, Mr. Yoho was a “Senior

Wholesaler” for BNY from February 28, 2005 until his termination on September 7,

2016. ECF 84, ¶ 1; ECF 91, ¶ 1. There is no dispute that he excelled in that role.

Indeed, throughout his tenure, Mr. Yoho was routinely one of BNY’s top-performing

wholesalers. ECF 78, ¶ 7; ECF 86, ¶ 7.

In early September 2016, Mr. Yoho was terminated by BNY after an

investigation into several allegations of misconduct toward female employees at sales

conferences in Chicago and San Diego that occurred just a few weeks earlier, in mid-

August 2016. The allegations included: (1) that Mr. Yoho told another employee,

Christine Noland, that her “fat ass” gave him “such a hard-on” while they were

standing together at a hotel bar (ECF 84, ¶ 14; ECF 91, ¶ 14); (2) that Mr. Yoho called

1 MSBC Securities Corporation and the Dreyfus Corporation are subsidiaries of

entities that are themselves subsidiaries of the BNY Mellon Corporation. ECF 8. The

Court refers to the Defendants interchangeably throughout this opinion as “BNY.”

the hotel room of a junior employee, Britney Curtin, late at night (ECF 84, ¶¶ 15-16;

ECF 91, ¶¶ 15-16); (3) that Mr. Yoho drunkenly told another female employee, Audrey

Seybert, that she was “too old” to be his “perfect age to date” but nonetheless “look[ed]

great” (ECF 84, ¶¶ 18-19; ECF 85-9, pp. 41:1-6; ECF 91, ¶¶ 18-19); and (4) that Mr.

Yoho told another employee, Bria Gilbert, that she had a “sexy” Australian accent,

and that a “great idea for a sales campaign” would be to use her picture in an email

to his clients. ECF 84, ¶ 21; ECF 85-8, pp. 27:24-28:6; ECF 91, ¶ 21.2

For each of these incidents, Mr. Yoho offers a denial or explanation. The

“hard-on” comment was “fabricated” by Ms. Noland, with whom he had a rocky and

rivalrous relationship. ECF 91, ¶ 14. The “late-night phone call” to Ms. Curtin was

to offer her leftover beer from his room, before he left the hotel with a friend, because

Ms. Curtin had mentioned “want[ing] more beer” after “the [hotel] bar closed.” ECF

85-3, p. 173:5-12. The comment about Ms. Seybert’s age was an innocent reference

to a “psychological study” regarding the perfect age for a romantic partner, and Mr.

Yoho did not “recall saying that [he] wanted to date [Ms. Seybert] or [that] she was

too old to date.” Id. at pp. 126:25-127:6. Finally, the reference to Bria Gilbert’s “sexy”

Australian accent was actually a comment “about Margot Robbie, the [Australian]

actress,” to the effect “that [he] liked her accent,” while the comment about using Ms.

Gilbert’s picture was “a compliment.” Id. at pp. 188:24-189:5, 190:15-20.

Whatever the truth behind these allegations (and the Court credits Mr. Yoho’s

testimony) the story of how they came to BNY’s attention is, in all material respects,

undisputed. True or not, Christine Noland reported the “hard-on” comment to Ryland

Pruett, Mr. Yoho’s “second-level” supervisor. ECF 92-2, p. 155:11-22; ECF 85-7, p.

199:20-22. Mr. Pruett testified that Ms. Noland did so at the same hotel-bar event

2 Audrey Seybert also testified about a fifth incident, during a social event aboard the

USS Midway during the San Diego conference, where an intoxicated Mr. Yoho

repeatedly placed his hand on her lower back until another male employee

intervened. ECF 84, ¶ 20; ECF 91, ¶ 20.

where the incident occurred. ECF 92-2, pp. 155:11-22. The next morning, Ms. Noland

spoke to Britney Curtin and learned about Mr. Yoho’s phone call to her hotel room.

ECF 85-7, pp. 213:11-214:15. Ms. Curtin didn’t find the phone call inappropriate and

didn’t really want to report it, but Ms. Noland reported it to Mr. Pruett anyway. Id.

at p. 233:2-13; ECF 85-10, pp. 45:9-46:13, 51:13-52:18. Soon after, Ms. Noland spoke

to Ms. Seybert and Ms. Gilbert about Mr. Yoho, and they told her about the other

incidents. ECF 85-7, pp. 288:20-289:21, 292:2-8. At Ms. Noland’s request, Ms.

Seybert and Ms. Gilbert met with Mr. Pruett, who listened to their complaints and

then reported Mr. Yoho to BNY’s Human Resources department. ECF 84, ¶ 22; ECF

91, ¶ 22.

After the incidents were reported to HR, HR dispatched an employee named

Thomas Galante to investigate. ECF 84, ¶ 23; ECF 91, ¶ 23. He did so, interviewing

Mr. Pruett, Ms. Noland, Ms. Curtin, Ms. Seybert, Ms. Gilbert, an employee named

Nick Vanderlinden, and, finally, Mr. Yoho. ECF 84, ¶ 24; ECF 91, ¶ 24. He then

reported to a group consisting of BNY’s in-house attorneys, HR personnel, Mr. Pruett,

and Mr. Pruett’s supervisor, Joe Moran. ECF 85-4, pp. 172:9-16, 316:1-9, 332:1-5,

341:1-14. BNY asserts that it concluded Mr. Yoho had violated its “Code of Conduct”

and “Sexual and Other Discriminatory Harassment Policy,” and decided to terminate

his employment. ECF 85-15, pp. 7:7-8:5, 56:1-20. As Mr. Yoho’s supervisor, Mr.

Pruett bore ultimate responsibility for the termination decision. ECF 79-4, p. 5; ECF

79-22, pp. 71:24-72:2. He delivered the news to Mr. Yoho by reading a statement

prepared by HR over the phone. ECF 85-4, p. 318:19-319:10.

Mr. Yoho’s view of all this, and the basis for his lawsuit, is that the whole

investigation was a pretextual sham to fire him because he was an alcoholic (a

disability under the ADA), or because BNY viewed him as too old to keep up with

what he characterized as the fast-paced, alcohol-soaked lifestyle of wholesaling

financial securities. He asserts that Ms. Noland fabricated the “hard-on” comment,

and then encouraged the other employees to report (and either fabricate or

exaggerate) minor incidents that did not warrant termination. Mr. Yoho argues that

BNY used these false or exaggerated allegations as an excuse to rid itself of him for

discriminatory reasons. Separately, he also presses several other claims (e.g.,

disability-accommodation, tortious-interference, and defamation claims) that arise

from a set of different, discrete facts, which are discussed below.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no

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

matter of law.” Fed. R. Civ. P. 56(a). At summary judgment, the Court must ask

whether the evidence presents “a sufficient disagreement to require submission to

the jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In making that decision,

the Court must “consider all evidence in the light most favorable to the party opposing

the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

The summary-judgment stage “is essentially ‘put up or shut up’ time for the

non-moving party,” which “must rebut the motion with facts in the record and cannot

rest solely on assertions made in the pleadings, legal memoranda, or oral argument.”

Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). If the non-moving

party “fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden at trial,”

summary judgment is warranted. Celotext Corp. v. Catrett, 477 U.S. 317, 324 (1986).

DISCUSSION & ANALYSIS

In his complaint, Mr. Yoho asserts claims for disability discrimination (Count

1), age discrimination (Count 2), hostile work environment (Count 3), sex or gender

discrimination (Count 4), retaliation (Count 5), defamation (Count 6), tortious

interference (Count 7), and corresponding violations of the Pennsylvania Human

Relations Act, or “PHRA” (Count 8). For the following reasons, there is insufficient

evidence to support the essential elements of Mr. Yoho’s claims, and BNY is therefore

entitled to summary judgment.

I. Mr. Yoho has forfeited his retaliation claim and conceded his hostile

work environment and gender discrimination claims.

Preliminarily, Mr. Yoho has either conceded or forfeited several of the claims

pled in his complaint. First, Mr. Yoho concedes that summary judgment should be

granted on his gender discrimination and hostile work environment claims. ECF 90,

p. 20 n.15. The Court grants summary judgment on those claims based on that

concession, and also because Mr. Yoho testified that he did not believe he was

discriminated against based on his sex or gender. ECF 85-3, pp. 235:22-236:4.

Next, the Court finds that Mr. Yoho has forfeited his retaliation claim. As pled

in the complaint, Mr. Yoho’s retaliation claim asserts that BNY retaliated against

him by (1) “direct[ing] those within its control, including [Mr. Yoho’s direct

supervisor] [Tim] McCormick and others, to stop speaking with Mr. Yoho and to shun

him”; and (2) “intentionally interfered with long-term relationships that Mr. Yoho

possessed in an effort to retaliate against him for raising legitimate concerns about

[BNY’s] dishonest and illegal treatment of him.” ECF 1, ¶¶ 257, 259. BNY moved

for summary judgment on the grounds that Mr. Yoho did not allege, or show, that he

engaged in any protected activity or suffered any adverse employment action related

to this post-termination conduct. ECF 83, pp. 16-17.

In response, Mr. Yoho does not defend his original retaliation theory. Instead,

his briefing transforms it into an entirely new claim that BNY retaliated against him

for calling BNY’s Employee Assistance Program, purportedly to seek help for his

alcoholism, shortly before he was fired. ECF 90, pp. 11-13. This is a completely

different claim than the retaliation claim pled in count 5 of the complaint, and it’s too

late for Mr. Yoho to assert it now. See Bell v. City of Phila., 275 F. App’x 157, 160 (3d

Cir. 2008) (“A plaintiff may not amend his complaint through arguments in his brief

in opposition to a motion for summary judgment.”) (cleaned up). Further, because

Mr. Yoho makes no effort to defend or substantiate his original retaliation claim on

summary judgment, the Court deems that claim to be forfeited and grants summary

judgment in favor of BNY. See Reeves v. Travelers Cos., 296 F. Supp. 3d 687, 692

(E.D. Pa. 2017) (“When a party opposing summary judgment responds to a summary

judgment motion but fails to address the substance of any challenge to particular

claims, that failure constitutes an abandonment of those causes of action and

essentially acts as a waiver of these issues.”) (cleaned up).

For these reasons, the Court enters summary judgment in BNY’s favor on

counts 3, 4, 5, and the analogous portions of his state-law claim under count 8.

II. Mr. Yoho’s disability-accommodation claim fails because he did not

timely request an accommodation.

The Court will also grant summary judgment on Mr. Yoho’s disability-

accommodation claim. Mr. Yoho’s claim is that BNY failed to accommodate his

alcoholism by providing him with a requested leave of absence. This claim arises out

of Mr. Yoho’s phone call to BNY’s confidential Employee Assistance Program, which

is operated by a third party. Mr. Yoho testified that he contacted the EAP four days

before he was fired to seek help for his drinking (ECF 85-3, pp. 119:21-120:4) while

Mr. Yoho’s close friend and supervisor, Tim McCormick, testified that he suggested

Mr. Yoho call the EAP and request a leave of absence as a last-ditch effort to “save

his position.” ECF 85-14, pp. 211:23-212:5, 215:3-7. For purposes of this decision,

the Court accepts Mr. Yoho’s testimony that he called the EAP in good faith.

Either way, Mr. Yoho quickly met with Mr. McCormick after calling the EAP

and told him that he had done so. ECF 85-3, p. 121:9-22. Mr. McCormick then told

Mr. Yoho that he should take a leave of absence and advised Mr. Pruett that Mr. Yoho

had called the EAP to seek help for alcoholism. Id. at 121:9-21; ECF 85-4, p. 314:11-

16. This led to a privileged meeting between Mr. Pruett, in-house counsel, and the

other decision-makers to discuss Mr. Yoho’s EAP call. ECF 85-4, p. 316:10-317:10.

Ultimately, BNY decided to proceed with investigating and terminating Mr. Yoho.

Mr. Yoho now argues that BNY violated the ADA by failing to accommodate his

alcoholism in this moment, i.e., by not offering him a leave of absence or other

opportunity to receive treatment in lieu of termination.

The problem with this argument is that Mr. Yoho’s request for leave, if it was

a request at all,3 came too late to trigger any duty by BNY to accommodate. The ADA

does not require an employer “to terminate an ongoing disciplinary process based

upon a post hoc request for reasonable accommodation.” Katz v. UPMC, No. 16-1627,

2019 WL 3843041, at *8 (W.D. Pa. Aug. 15, 2019) (Cercone, J.). In other words,

“[w]hen an employee requests an accommodation for the first time only after it

becomes clear that an adverse employment action is imminent, such a request can be

too little, too late.” Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 90 (1st Cir. 2012)

(cleaned up; collecting cases); see also Parsons v. Auto Club Grp., 565 F. App’x 446,

449 (6th Cir. 2014) (same). Faced with a last-minute request of this kind, an employer

has “no duty to engage in the interactive process” typically required by the ADA, or

to provide any “reasonable accommodation,” even if the employee alleges that the

misconduct under investigation was caused by his or her disability. Katz, 2019 WL

3843041 at *9; see also Palmer v. Fed. Express Corp., 235 F. Supp. 3d 702, 722 (W.D.

Pa. 2016) (Bissoon, J.) (“The ADA, however, does not require that an employer excuse

3 Mr. Yoho testified that Mr. McCormick recommended that he take a leave of

absence. ECF 85-3, p. 122:16-21. But he also testified that he never agreed to do so

or formally requested leave from BNY. In fact, he explained that he did not want to

take a leave of absence for financial reasons—he would have received only his “base

salary and not commission.” Id. at p. 123:2-12. At most, he suggested that he might

have used some vacation time if he had not been fired. Id. For present purposes, the

Court assumes that this amounted to an indirect request for time off.

an employee’s previous misconduct, even if it was precipitated by his or her

disability.”) (cleaned up); Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454,

465 (4th Cir. 2012) (“[T]he law does not require the school to ignore misconduct that

has occurred because the student subsequently asserts it was the result of a

disability.”); McElwee v. Cty. of Orange, 700 F.3d 635, 641 (2d Cir. 2012) (“A requested

accommodation that simply excuses past misconduct is unreasonable as a matter of

law.”) (citations omitted); Davila v. Qwest Corp., 113 F. App’x 849, 854 (10th Cir.

2004) (“[E]xcusing workplace misconduct to provide a fresh start/second chance to an

employee whose disability could be offered as an after-the-fact excuse is not a

required accommodation under the ADA.”) (citations omitted).

The same goes here. At best, Mr. Yoho sought an accommodation for his

alcoholism well after BNY began investigating the misconduct in question, and only

four days before he was terminated. Indeed, by the time Mr. Yoho called the EAP, it

is undisputed that BNY was seriously considering terminating Mr. Yoho, and had at

least made a tentative decision to do so, subject only to a final interview of Mr. Yoho

himself. For example, in a September 1, 2016, email exchange entitled “Getting all

ducks in a row…,” two BNY HR employees discussed the logistics of organizing a

“term[ination] meeting” with Mr. Yoho. ECF 79-13. Mr. Pruett also testified that

“[t]he decision at the end of that week [i.e., September 2, 2016] was, barring the

conversation that [HR investigator Thomas Galante] would have with [Mr. Yoho] …

if things didn’t change, then we would move to terminate.” ECF 85-4, pp. 307:10-17.

Mr. Yoho does not dispute this timeline. In fact, he argues that this evidence shows

BNY had made a final decision to terminate him by September 2nd. See ECF 77, p.

11 n.1 (contending, based on the September 1, 2016, email, that there is “ample

evidence” that Mr. Yoho was “actually terminated on September 2, 2016.”).

Given this, the Court finds that BNY was under no obligation to pause its

investigation of Mr. Yoho or alter any disciplinary decision, whether tentative or

otherwise, based on Mr. Yoho’s EAP call and his possible desire for some sort of leave

of absence. Any request for accommodation was, by then, “too little, too late” to

trigger BNY’s obligations under the ADA. Jones, 696 F.3d at 90. The Court will thus

grant summary judgment on the disability-accommodation portion of count 1 and the

corresponding portion of count 8.

III. Mr. Yoho has not raised any genuine dispute of material fact as to his

age- and disability-discrimination claims.

Separate and apart from his claims above, Mr. Yoho also claims that BNY

terminated him on the basis of age and disability (alcoholism). The ADEA claim fails

because Mr. Yoho has not met his prima facie burden of showing age discrimination.

And both claims fail due to the absence of any evidence that would create a material

dispute regarding pretext.

A. Mr. Yoho fails to present a prima facie case of age

discrimination.

To begin with, Mr. Yoho’s age-discrimination claim fails at the threshold,

because he has not presented sufficient evidence to establish even a prima facie case.

The extent of Mr. Yoho’s argument is that (1) he was 50 years old at the time he was

fired; (2) he knows of another older wholesaler named Pat Johnson who was

terminated by BNY (for reasons not in the record); (3) he is not personally aware of

BNY hiring “an external wholesaler who is 50 years of age or older” (an assertion not

supported by any other evidence in the record); and (4) he had conversations with his

friend and supervisor Tim McCormick “about [wholesaling] being a ‘young man’s

game’ … due to the rigors of the life of the external wholesaler.” ECF 90, pp. 8-11;

ECF 85-3, pp. 106:2-201, 232:3-18; ECF 92-11, ¶¶ 22-37.

This is not enough. To establish a prima facie case of age discrimination under

the ADEA, a plaintiff must show (1) that he is at least 40 years old; (2) that the

defendant took an adverse employment action against him; (3) that he was qualified

for the position in question; and (4) that he was replaced by another employee who

was sufficiently younger so as to support an inference of discriminatory animus. See

Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009). Where, as here, the

plaintiff is not directly replaced by another employee whose age can be assessed, the

fourth element can be established by showing other “facts which if otherwise

unexplained, are more likely than not based on the consideration of impermissible

factors.” Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir.

2015) (cleaned up). Where the plaintiff seeks “to satisfy the fourth prima facie

element with evidence that a similarly situated individual was treated differently,”

the comparator employee “must be similarly situated in all relevant respects, taking

into account factors such as the employees’ job responsibilities, the supervisors and

decision makers, and the nature of the misconduct engaged in.” Chase v. Frontier

Commc’ns Corp., 361 F. Supp. 3d 423, 436–37 (M.D. Pa. 2019) (cleaned up).

Here, Mr. Yoho offers something like comparator evidence, but it falls far short.

To begin with, there is insufficient evidence that Pat Johnson—an older wholesaler

who Mr. Yoho suggests was also fired—is a proper comparator. Mr. Yoho’s burden is

to point to some “evidence of similarly situated, substantially younger employees …

not receiving discipline.” Willis, 808 F.3d at 646 (emphasis added). Showing that

BNY once fired another older employee, for reasons not in the record, does not gives

rise to any discriminatory inference in Mr. Yoho’s case. Further, Mr. Yoho admits

that he knows nothing about the circumstances of Pat Johnson’s termination, let

alone any reason to believe Mr. Johnson was fired due to his age. ECF 85-3, pp. 106:2-

20, 232:16-18.4

Separately, Mr. Yoho makes a generalized claim that BNY hires only younger

wholesalers. ECF 92-11, ¶¶ 34-35. This also misses the mark. Again, Mr. Yoho’s

4 Even if this were enough to establish a prima facie case of age discrimination (and

it is not), this “rumored, unspecified, and uncorroborated evidence concerning a single

employee fails to establish pretext.” Willis, 808 F.3d at 650.

burden, if he wishes to rely on comparator evidence, is to identify younger

wholesalers, likely with the same supervisors, who were accused of similar

misconduct yet treated differently. He has not done so. See Chase, 361 F. Supp. 3d

at 436–37; Wilcher v. Postmaster Gen., 441 F. App’x 879, 882 (3d Cir. 2011) (“[W]e

accept the standard used by other circuits that to be considered similarly situated,

comparator employees must be similarly situated in all relevant respects.”).

Otherwise, Mr. Yoho points to no other facts that would allow for a prima facie

inference of age discrimination. His alleged discussion with Mr. McCormick about

how wholesaling was a “young man’s game” establishes, at best, an irrelevant stray

remark by a close friend of Mr. Yoho’s who was not only uninvolved with the decision

to fire him, but actually may have lobbied against it. ECF 1, ¶¶ 146-150; ECF 92-2,

p. 323:15-20; ECF 85-14, pp. 220:2-221:6. Finally, Mr. Yoho’s “own personal belief

that the true reason for the discharge was [age] discrimination” is obviously

“insufficient to create a genuine issue of material fact.” Ade v. KidsPeace Corp., 401

F. App’x 697, 703 (3d Cir. 2010). Even that much isn’t clear—Mr. Yoho testified at

his deposition only that he felt age discrimination was a “possibility.” ECF 85-3, p.

231:17-19.

For all these reasons, the Court will grant summary judgment on count 2 and

the corresponding portion of count 8.

B. Mr. Yoho fails to show that BNY’s asserted basis for firing him

was a pretext to terminate him based on age or disability.

Mr. Yoho’s age and disability claims fail because he cannot establish sufficient

evidence of pretext to get to a jury.5

5 BNY argues that Mr. Yoho doesn’t even get to pretext on his disability claim because

he cannot demonstrate that he is disabled—which is part of his prima facie burden.

This is a close call. Mr. Yoho has likely failed to show that he is actually disabled,

given the lack of evidence of any chronic or permanent impairment caused by his

alleged alcoholism. See Maull v. Div. of State Police, 141 F. Supp. 2d 463, 473 (D.

Del. 2001) (“[T]emporary impairments caused by the periodic, and even frequent,

To begin with, there is no question that BNY has articulated a legitimate,

nondiscriminatory reason for firing Mr. Yoho. “[W]orkplace misconduct is a

legitimate and nondiscriminatory reason for terminating employment, even when

such misconduct is related to a disability.” McElwee, 700 F.3d at 641 (citations

omitted). And there is also no question that “an employer may hold an alcoholic or

drug-dependent employee to the same qualification standards for employment or job

performance and behavior that such entity holds other employees, even if any

unsatisfactory performance or behavior is related to the drug use or alcoholism of

such employee.” Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998)

(citing 42 U.S.C. § 12114(c)).

So the burden returns to Mr. Yoho, who must present evidence that BNY’s

stated reason for terminating him is pretextual. At the pretext stage, “some

specificity is required to show that the reason given by the employer was weak,

inconsistent or incoherent—enough to infer that animus could have motivated the

decision.” Darby v. Temple Univ., 786 F. App’x 368, 370 (3d Cir. 2019). In other

words, Mr. Yoho must point to evidence “from which a factfinder could reasonably

overindulgence of alcohol are insufficient to establish a substantially limiting

impairment.”), aff’d 39 F. App’x 769 (3d Cir. 2002); Scheffler v. Dohman, 785 F.3d

1260, 1261 (8th Cir. 2015) (“[D]riving while intoxicated on multiple occasions does

not, in and of itself, establish that Scheffler is an alcoholic.”) (cleaned up); Burch v.

Coca-Cola Co., 119 F.3d 305, 316 (5th Cir. 1997) (an alcoholic plaintiff must show

impairments “qualitatively different than those achieved by an overindulging social

drinker”). But he has probably established a dispute of fact that he was “regarded

as” disabled by the primary decision-maker here, Mr. Pruett. See Rubano v. Farrell

Area Sch. Dist., 991 F. Supp. 2d 678, 691 (W.D. Pa. 2014) (Lenihan, J.) (“[A]ll that an

ADA plaintiff must show to raise a genuine issue of material fact for the ‘regarded as’

prong is that a supervisor knew of the purported disability.”). That assumption is

plausible, because there is at least some evidence that Mr. Pruett had observed Mr.

Yoho drinking to excess at work events and, further, seemed to feel this was

indicative of a problem. ECF 85-4, p. 252:8-11 (“I had told John [Mussallem] that it

felt like that [Mr. Yoho] was drinking more and that as a good friend that I know the

two of them are, that he should have a talk with Keith.”).

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.” Fuentes v. Perskie, 32 F.3d 759, 762

(3d Cir. 1994).

Mr. Yoho opts for the first path, arguing that “inconsistencies, contradictions,

and irregularities” would allow a jury to infer pretext here. ECF 90, pp. 5-6.

Unfortunately, he also says that “[it] is near impossible” to identify them in his

briefing, “given the vast number of them.” Id. at p. 6. So he instead refers the Court

to the entirety of his 346-paragraph Concise Statement of Material Facts and all of

the attached evidence. Id. He then provides “a few examples” of inconsistencies,

several of which also refer the Court to more than 100 paragraphs of his Concise

Statement. Id.6

The Court has reviewed the cited paragraphs and evidence carefully, and Mr.

Yoho’s assertions fall apart under scrutiny. To begin with, at least three of the

“examples” Mr. Yoho cites are not really “examples” at all, since Mr. Yoho doesn’t say

what he is referring to with any specificity. Those are: (1) “[t]he numerous internal

inconsistencies between the testimony of Defendants’ witnesses including Pruett,

Noland, Gilbert and Seybert,” citing more than 100 paragraphs of his Concise

Statement; (2) “[t]he numerous inconsistencies between the testimony and the notes

attributed to Galante,” citing nothing; and (3) “[t]he inconsistencies in Defendants’

[30(b)(6)] testimony (Spezialetti),” citing ten paragraphs of his Concise Statement.

6 This is not a helpful way for a litigant to resist summary judgment. “If factual

support for [Mr. Yoho’s] claim exist[s] in the record, it [is] incumbent upon [him] to

direct [the Court’s] attention to those facts.” DeShields v. Int’l Resort Props. Ltd., 463

F. App’x 117, 120 (3d Cir. 2012); see also United States v. Claxton, 766 F.3d 280, 307

(3d Cir. 2014) (parties “bear the responsibility to comb the record and point the Court

to the facts that support their arguments.”).

Id. While each of the many cited facts refer to evidence in the record, the description

of what that evidence shows is either inaccurate or incomplete.

Still, as far as the Court can tell, the asserted “inconsistencies” are not the type

of inconsistencies that are pertinent to the issue of pretext. Instead, at most, Mr.

Yoho points to inconsistencies in statements and testimony of those who were

interviewed in connection with Mr. Yoho’s alleged harassment. But “[a]n internal

investigation, like a judicial proceeding, often produces conflicting evidence and

requires judgments about credibility and the weight to be given various pieces of

information.” Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 417 (8th Cir.

2010). Thus, where an employer “relies on [witness] statements and complaints when

making a decision to terminate an employee, the employee cannot later establish

pretext by simply challenging the veracity of such statements.” Farrell v. Abbott

Labs., Inc., No. 11-120, 2011 WL 4055167, at *9 (W.D. Pa. Sept. 12, 2011) (Schwab,

J.) (cleaned up); see, e.g., Ade, 401 F. App’x at 703 (“Ade disputes the substance of the

harassment claims, but cannot dispute that complaints were made to KidsPeace

management and that KidsPeace investigated those complaints.”). Such is the case

here.7

7 As for the alleged “inconsistencies” in the testimony of BNY’s 30(b)(6) witness, Mary

Spezialetti, Mr. Yoho argues in the cited paragraphs that there is an inconsistency

between Ms. Spezialetti’s testimony that BNY considered Mr. Yoho’s conduct “in the

aggregate” and the fact that BNY “did not consider any of [Mr. Yoho’s] performance

reviews from 2009 - 2016, including his rating of ‘meets expectations’ and ‘achieved

expectations’ in the area of ‘Corporate Inclusion.’” ECF 78, ¶¶ 273-83. This is not a

material inconsistency. It’s also not true. Ms. Spezialetti testified only that “[t]he

performance ratings in those particular areas … don’t negate the conduct that took

place and they don’t mitigate the conduct that took place.’” ECF 79-22, pp. 66:18-22.

In any event, what matters here are “the criteria identified by the employer, not the

criteria … the plaintiff thinks are important.” Simpson v. Kay Jewelers, Div. of

Sterling, Inc., 142 F.3d 639, 648 (3d Cir. 1998). BNY was free to consider and weigh

competing evidence as it saw fit. That it didn’t consider Mr. Yoho’s prior positive

work performance as outweighing his recent problematic behavior isn’t the type of

inconsistency or implausibility that is relevant to pretext.

Nor is Mr. Yoho “entitled to an inference of discrimination” simply because

BNY “believed the allegations against him,” rather than accepting his denials.

Coulton v. Univ. of Pennsylvania, No. 05-1446, 2006 WL 759701, at *8 (E.D. Pa. Mar.

21, 2006), aff’d, 237 F. App’x 741 (3d Cir. 2007). Mr. Yoho’s “denial that he engaged

in the conduct for which he was purportedly terminated is insufficient to create a

genuine issue of material fact.” Ade, 401 F. App’x at 703 (citation omitted). He must

cast doubt on whether BNY really relied on its investigation, not show that BNY was

mistaken or overly harsh. A federal court is not “a super-personnel department that

reexamines an entity’s business decisions.” Brewer v. Quaker State Oil Ref. Corp., 72

F.3d 326, 332 (3d Cir. 1995). “No matter how medieval a firm’s practices, no matter

how high-handed its decisional process, no matter how mistaken the firm’s

managers,” the appropriate inquiry is limited to “whether the employer gave an

honest explanation of its behavior.” Id.; see Frymoyer v. E. Penn Mfg. Co., Inc., 757

F. App’x 97, 101 (3d Cir. 2018) (employee must show that employer “did not have an

honest belief that he engaged in misconduct justifying termination.”); Willis, 808 F.3d

at 647 (“The question is not whether the employer made the best, or even a sound,

business decision; it is whether the real reason is discrimination.”) (cleaned up).

Here, Mr. Yoho raises no genuine dispute over the material facts that BNY (1)

conducted an investigation based on a report to HR made by Ryland Pruett; (2)

interviewed multiple witnesses during that investigation, including the women

involved in the alleged incidents and Mr. Yoho; (3) consulted with its counsel; and (4)

decided to terminate Mr. Yoho. Mr. Yoho hasn’t shown inconsistent explanations by

BNY as to why it terminated Mr. Yoho (e.g., it did not first suggest that he was

terminated for poor performance and then later say he was terminated for

misconduct). Indeed, the record clearly shows that BNY had evidence, including

corroboration of certain key details by Mr. Yoho himself, to support its conclusion

that Mr. Yoho engaged in misconduct. Mr. Yoho’s broad allegations of

“inconsistencies” do not bear on the question of pretext.

Beyond those, Mr. Yoho points to about five other “examples” of evidence that

he says establish pretext. None of them create a genuine dispute of material fact.

First, Mr. Yoho says that BNY’s investigator, Thomas Galante, was “directed

to deviate from his typical investigation process” in his case. ECF 90, p. 6. This is a

reference to the fact that Mr. Galante’s investigation of Mr. Yoho was overseen by

BNY’s in-house counsel. ECF 86, ¶ 192. Asked if counsel typically directed his

investigations, Mr. Galante responded that he “wouldn’t say that it’s usual,” but that

“it does occur.” Id. at ¶ 193. A jury could not reasonably infer pretext from this

alleged “deviation” from Mr. Galante’s “usual” procedure. The involvement of legal

counsel in this context does not create any sort of inference of pretext. Cf. Burns v.

Republic Sav. Bank, 25 F. Supp. 2d 809, 827 (N.D. Ohio 1998) (“[T]he board took the

trouble to seek legal advice regarding this issue at the time it promoted Burns . . .

The board was told that it would not be discriminatory to deny Burns a golden

parachute if it did not give parachutes to anyone else. The board followed this advice.

This conduct is not consistent with a discriminatory motive.”).

Second, Mr. Yoho argues that the temporal proximity between his phone call

to the BNY Employee Assistance Program and his termination is suggestive of

pretext. ECF 90, pp. 11-13. Recall that Mr. Yoho called the EAP four days before he

was terminated to seek help for his alcoholism. He suggests it is suspicious that “as

soon as Pruett learned of [Mr. Yoho’s] call to EAP, he chose to terminate [Mr. Yoho]

the very next day on September 7th.” ECF 90, p. 4. This argument is creative, but it

doesn’t jibe with the evidence. That is, Mr. Yoho ignores the undisputed fact that

BNY had nearly completed its investigation and tentatively decided to terminate Mr.

Yoho by September 2, 2016, the day before Mr. Yoho called the EAP. ECF 77, p. 11

n.1; ECF 79-13; ECF 85-4, pp. 307:10-17. “The Court need not rely on an inference of

causality based only on proximity in time when there is uncontroverted evidence of

other causal factors which clearly justify the termination.” Driscoll v. Lincoln Tech.

Inst., 702 F. Supp. 2d 542, 547 (E.D. Pa. 2010) (emphasis in original).

Third, Mr. Yoho claims that pretext can be inferred from “inconsistencies in

who Defendants claim the decision maker was in [Mr. Yoho’s] termination.” ECF 90,

p. 11. That is, he argues that “[d]espite the fact that there are three separate

documents … that identify Pruett as the decision maker, Pruett claims that he was

not the sole decision maker.” ECF 78, ¶ 267. But the documents cited by Mr. Yoho

say only that Ryland Pruett was the “responsible,” not “sole,” decision-maker. See

ECF 79-4, p. 5 (“Ryland Pruett was responsible for the decision to terminate

Plaintiff’s employment.”); ECF 79-5 (“Also, note the decision maker as Ryland K.

Pruett[.]”); ECF 79-6 (“The decision has been made by the appropriate departmental

management[.]”). Nor can the Court find any other instance in which BNY described

Mr. Pruett as the “sole” decision-maker or denied that he made the decision with a

group. See ECF 85-4, p. 172:9-16 (“It was a group decision ... Joe Moran and me, with

the help of HR.”); ECF 79-22, pp. 71:24-72:2 (“Ryland Pruett was the responsible

decisionmaker, but Ryland Pruett made his decision in consultation with human

resources and with his own manager Joe Moran.”).

Fourth, Mr. Yoho claims that pretext can be inferred from what he terms

“[t]he destroyed / missing EAP notes.” ECF 90, p. 6. This refers to notes Mr. Yoho

believes are “missing” from his call to BNY’s EAP phone line. ECF 78, ¶¶ 338-46.

This argument is wholly speculative—the “evidentiary equivalent of a raised

eyebrow[.]” Naas v. Westinghouse Elec. Corp., 818 F. Supp. 874, 880 (W.D. Pa. 1993)

(Brooks Smith, J.).

The undisputed facts are these: BNY outsourced responsibility for operating

its EAP to a third-party entity, Beacon Health Options, that has no affiliation with

BNY. ECF 78, ¶ 334. Mr. Yoho thus subpoenaed Beacon for documents relating to

his EAP phone call. Id. at ¶ 342. In response, Beacon produced documents, including

one entitled “Related Notes,” but that document reflected no notes related to Mr.

Yoho’s phone call. Id. at ¶ 343-44. There is no evidence that any such notes were

taken in Mr. Yoho’s case, no evidence that BNY had any control over or

communication with Beacon, and no evidence about Beacon’s notetaking practices.

Speculation that a third party lost or destroyed documents that may not exist does

not support an inference that BNY’s reason for firing Mr. Yoho was pretextual. See

Marconi v. Moon Area Sch. Dist., 104 F. Supp. 3d 686, 703 n.6 (W.D. Pa. 2015)

(Fischer, J.) (“[M]ere speculation and conjecture on the part of the plaintiff is no

substitute for actual evidence[.]”) (citations omitted).

Fifth, Mr. Yoho argues that pretext can be inferred from the fact that BNY’s

investigator, Thomas Galante, reportedly lost “audio notes” of his witness interviews.

ECF 90, p. 6. This is also the basis for Mr. Yoho’s separate motion for spoliation

sanctions. ECF 76; ECF 77. The notes in question were not recordings of Mr.

Galante’s witness interviews. Instead, Mr. Galante, who is blind, used a dictation

device called a “Stenomask” to dictate his own audio notes in real time—notes that

are essentially his bullet-point summaries of the witness interviews. ECF 85-5, pp.

16:12-23, 17:17-18, 18:22-20:4. A Stenomask is a device that covers the mouth and

allows for dictation of notes without disrupting the interviewee. Id. at 17:21-18:6.

Mr. Galante testified that he later “misplaced” his original audio notes, but BNY has

produced a purported word-for-word transcription that it says was prepared by Mr.

Galante’s intern before the audio was lost. ECF 84, ¶ 103-04; ECF 91, ¶ 103-04; ECF

85-5, pp. 16:12-20:4.

Initially, the inadvertent loss of the audio notes here, standing alone, does not

support an inference of pretext. Mr. Yoho’s counsel was provided the written

transcription of the audio, and had an opportunity to depose Mr. Galante and the

witnesses interviewed by Mr. Galante and ask them if the transcribed notes reflected

what they said.

Beyond that, to raise an inference of pretext, there must be more than pointing

to a document-preservation error by an HR employee. For example, Mr. Yoho has

produced no evidence suggesting that Mr. Galante had any substantive say in the

termination decision aside from conducting the fact-finding and investigation. See

ECF 85-5, p. 14:6-8 (“… I was not a part of any recommendations or the decision-

making in terms of actions regarding Mr. Yoho.”). And even assuming the audio

contained statements that contradicted witness testimony elsewhere, it does not alter

the undisputed fact that BNY received complaints regarding Mr. Yoho. In short, the

missing audio tapes do not provide any basis to infer pretext. See Sarmiento v.

Montclair State Univ., 285 F. App’x 905, 911 (3d Cir. 2008) (“Given that Sarmiento

has failed to cast meaningful doubt on any of the core facts underlying the

nondiscriminatory rationale proffered by MSU, we believe that any inference that the

university destroyed the committee notes with a view towards concealing unlawful

discrimination would be highly speculative.”).

Likewise, regarding Mr. Yoho’s request for sanctions due to spoliation, the

Court finds no basis to issue sanctions here, including Mr. Yoho’s requested sanction

of entering summary judgment in his favor or granting an adverse inference

instruction. To obtain an adverse inference on the basis of spoliation, let alone

summary judgment,8 Mr. Yoho must present evidence showing “bad faith” on the part

of BNY. See Bull v. United Parcel Serv., Inc., 665 F.3d 68, 79 (3d Cir. 2012) (“A finding

of bad faith is pivotal to a spoliation determination.”); see also Bozic v. City of

Washington, Pa., 912 F. Supp. 2d 257, 270 (W.D. Pa. 2012) (Hornak, J.) (“Almost all

8 While the Court has the authority to enter summary judgment in favor of a party

as a sanction for spoliation, such “case-dispositive sanctions” are reserved for

“extreme cases.” Bistrian v. Levi, No. 08-3010, 2020 WL 1443735, at *4 (E.D. Pa.

Mar. 24, 2020).

of the district court cases applying Bull … have declined to find spoliation where the

party’s conduct was no worse than negligent[.]”) (citations omitted); Rega v.

Armstrong, No. 08-156, 2016 WL 10999995, at *1 n.2 (W.D. Pa. June 20, 2016)

(McVerry, J.) (“Bull makes quite clear that the Court cannot find spoliation and, in

turn, impose spoliation sanctions without first making a finding of bad faith[.]”).

“Bad faith, in this context, means that the defendant intentionally withheld

the evidence.” Rega, 2016 WL 10999995, at *1; see also Bull, 665 F.3d at 76-77 (“The

key issue, however, is whether the discrepancy … was an intentional

misrepresentation or—as her counsel insists—inadvertence.”). Conversely, “no

unfavorable inference arises when the circumstances indicate that the document or

article in question has been lost or accidentally destroyed[.]” Peterson v. Attorney

Gen. Pa., 551 F. App’x 626, 628 (3d Cir. 2014). “The party seeking sanctions bears

the burden of proving spoliation of evidence occurred.” Jacobs v. City of Pgh., 143 F.

Supp. 3d 307, 311 (W.D. Pa. 2015) (Conti, C.J.).

Here, as discussed, Mr. Yoho has presented no evidence to rebut Mr. Galante’s

testimony that he inadvertently misplaced the audio notes. Nor, despite having every

opportunity to question the interviewed witnesses, has Mr. Yoho identified reason to

question either (1) that the interviews occurred, or (2) that the purported word-for-

word transcription of Mr. Galante’s audio notes was, in fact, prepared by Mr. Galante

and his intern and is accurate. Thus, there is no evidence of bad faith and, further,

no evidence of any resulting prejudice.9

9 Had this matter been raised during discovery, the Court’s preferred remedy would

have been to allow Mr. Yoho to depose all interviewed witnesses; depose Mr. Galante

and his intern; and obtain the transcribed notes despite any claim of privilege. See

Bistrian, 2020 WL 1443735, at *16 (explaining that a court may determine that “[a]

lesser sanction is adequate to cure the prejudice.”). Mr. Yoho was able to do all those

things anyway. Since he has uncovered no evidence of bad faith or prejudice through

that discovery, the Court will not impose sanctions, or provide any other additional

remedy. See, e.g., Crown Castle USA Inc. v. Fred A. Nudd Corp., No. 05-6163, 2010

WL 1286366, at *16 (W.D.N.Y. Mar. 31, 2010) (“[A]n adverse inference instruction

Additionally, while an adverse inference can be a powerful sanction, that

inference must be tailored to what the evidence would have likely demonstrated. The

scope of any such inference “should not test the limits of reason.” Webb v. D.C., 146

F.3d 964, 974 (D.C. Cir. 1998); see Residential Funding Corp. v. DeGeorge Fin. Corp.,

306 F.3d 99, 109 (2d Cir. 2002) (“[T]he party seeking an adverse inference must

adduce sufficient evidence from which a reasonable trier of fact could infer that the

destroyed or unavailable evidence would have been of the nature alleged by the party

affected by its destruction.”) (cleaned up). Here, given the presence of the transcribed

notes and the lack of any other evidence of discrimination by BNY, it would not be

reasonable for the Court to allow a jury to infer that the entirety of Mr. Yoho’s

otherwise absent case—i.e., evidence that BNY did not really rely on its investigation

at all—could have somehow been found in the missing audio notes. A spoliation

sanction is therefore inappropriate.

In sum, Mr. Yoho has offered only “unfounded suspicions and unsupported

statements” that are “completely insufficient to establish pretext.” Darby, 786 F.

App’x at 370. The Court will therefore grant summary judgment on the age- and

disability-discrimination portions of counts 1, 2, and 8.

IV. BNY is entitled to summary judgment on Mr. Yoho’s defamation and

tortious-interference claims.

Lastly, BNY is entitled to summary judgment on Mr. Yoho’s defamation and

tortious-interference claims. Broadly speaking, these claims are based on Mr. Yoho’s

allegation that BNY “blackballed” him from other jobs in the industry after his firing.

ECF 92-11, ¶ 44-45. The defamation claim further asserts that BNY has “caused”

may not be appropriate where the destruction of evidence has not prejudiced the

movant.”) (citations omitted); Ruzhinskaya v. Healthport Techs., LLC, 311 F.R.D. 87,

100 n.7 (S.D.N.Y. 2015) (“The Court … is prepared to state that if any sanction is

imposed, it would take the form of a monetary sanction, rather than an adverse

inference instruction. No adverse inference is merited here.”).

some of his former co-workers to believe he is a “sexual harasser.” Id. at ¶¶ 51-55.

The tortious-interference claim is largely duplicative of the defamation claim, as it

alleges that the tortious conduct at issue is the defamatory statements by BNY. See

ECF 1, ¶ 292.

Despite his broad accusations, Mr. Yoho has identified only one actual

statement by a BNY employee, to a single prospective employer, that is capable of

evaluation. That is a statement made by Mr. Yoho’s friend and former supervisor,

Tim McCormick, to LoCorr, a company Mr. Yoho applied to for a job after he was

fired. ECF 90, pp. 13-16, 18-20. The Court rejects Mr. Yoho’s other theories out of

hand, as they are based entirely on vague hearsay and speculation about the

existence of unidentified defamatory statements that Mr. Yoho could have identified

through third-party discovery, but did not. See Ross v. Bd. of Educ. Greater Egg

Harbor Reg’l High Sch. Dist., 658 F. App’x 97, 100 (3d Cir. 2016) (affirming grant of

summary judgment where plaintiff “failed to identify the particular statement

Defendants made that was allegedly defamatory.”) (citation omitted); Diodato v.

Wells Fargo Ins. Servs., USA, Inc., 44 F. Supp. 3d 541, 563 (M.D. Pa. 2014)

(“[I]nferences and an opportunity for defamation are insufficient, and plaintiffs must

identify a specific statement in order to prevail.”) (citation omitted); Smith v. Sch.

Dist. of Phila., 112 F. Supp. 2d 417, 429 (E.D. Pa. 2000) (defamation claimant must

“specifically identify what allegedly defamatory statements were made by whom and

to whom.”) (citations omitted).

The Court turns, then, to the LoCorr statement. After Mr. Yoho was fired, he

applied for a job at a company called LoCorr and was offered an interview. ECF 85-

3, pp. 344:9-13, 345:17-19. During that process, one of the managers at LoCorr

reached out to Mr. Yoho’s friend and former supervisor at BNY, Tim McCormick, for

a reference. Id. at pp. 293:24-294:4. Mr. McCormick testified that he tried to be “very

complimentary” of Mr. Yoho’s “sales skills” and “absolutely was trying” to help Mr.

Yoho land the job. ECF 85-14, pp. 313:11-15. However, when pressed by the LoCorr

manager on why Mr. Yoho left BNY, Mr. McCormick initially said he “couldn’t discuss

it,” but then added that Mr. Yoho was “not here because he simply ran a red light.”

Id. at pp. 312:2-24. Mr. Yoho claims this “red light” comment was defamatory.

When analyzing a defamation claim under Pennsylvania law,10 the Court

“must decide at the outset whether [the] statement[s] [are] capable of defamatory

meaning.” Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001) (citation omitted);

see also Cashdollar v. Mercy Hosp. of Pittsburgh, 595 A.2d 70, 75 (Pa. Super. Ct. 1991)

(“Whether a communication can be construed to have a defamatory meaning is a

question of law for the court to determine.”) (citations omitted). Where, as here, a

claimant alleges “defamation by innuendo,” the defamatory inference “must be

warranted, justified and supported” by the defendant’s statement. Rudolph v. Safari

Club Int’l, No. 12-1710, 2018 WL 3145716, at *9 (W.D. Pa. June 27, 2018) (Eddy, Mag.

J.) (citation omitted). “The question of whether innuendo is actionable as defamatory

is a question of law.” ToDay’s Housing v. Times Shamrock Communications Inc., 21

A.3d 1209, 1215 (Pa. Super. Ct. 2011) (citation omitted). The Court must “view the

statement[] in context” and ask whether the “impression it would naturally engender,

in the minds of the average persons among whom it is intended to circulate,” is

capable of defamatory meaning. Tucker, 237 F.3d at 282 (cleaned up).

10 Both parties agree that Pennsylvania law applies to these state-law claims. See

ECF 90, pp. 16-20; ECF 83, pp. 17-18. Arguably, Ohio law could apply, since Mr.

Yoho is domiciled in Ohio. See Wilson v. Slatalla, 970 F. Supp. 405, 414 (E.D. Pa.

1997) (“[T]he state of plaintiff's domicile generally has the greatest concern in

vindicating plaintiff's good name and providing compensation for harm caused by the

defamatory publication.”). But since neither party has raised this and the Court’s

independent review of Ohio law shows no conflict regarding the applicable law, the

Court applies Pennsylvania law. See Fuchs v. Scripps Howard Broad. Co., 868

N.E.2d 1024, 1033 (Ohio Ct. App. 2006) (“Summary judgment is appropriate in

defamation actions because whether words are defamatory is a question of law.”);

Stainbrook v. Ohio Sec’y of State, 88 N.E.3d 1257, 1263 (Ohio Ct. App. 2017) (“[A]

true fact cannot be the basis for a defamation lawsuit.”).

Here, the statement that Mr. Yoho “simply ran a red light” is not capable of

defamatory meaning. At most, this statement implies that Mr. Yoho had been fired

for cause. But a “statement,” let alone a vague implication, “that someone has been

terminated from employment or terminated for cause, without more, is not

defamatory.” Pilkington v. CGU Ins. Co., No. 00-2495, 2000 WL 33159253, at *5 (E.D.

Pa. Feb. 9, 2001) (citations omitted). Such statements encompass “an array of

matters which would not subject one to public contempt or repel others[.]” Id.; see,

e.g. Krolczyk v. Goddard Sys., Inc., 164 A.3d 521, 532 (Pa. Super. Ct. 2017) (statement

that teacher-plaintiffs were fired for “various reasons” and “for the good of the

children” was not defamatory); Eure v. Friends’ Cent. Sch. Corp., No. 18-1891, 2019

WL 3573489, at *13 (E.D. Pa. Aug. 5, 2019) (statement informing parents that

plaintiff-teachers had been “fired” was not defamatory); Bull Int’l, Inc. v. MTD

Consumer Grp., Inc., 654 F. App’x 80, 106 (3d Cir. 2016) (statement announcing

termination of contract was not defamatory based on “strained innuendo” that was

“not reasonable[.]”). So it is, here.

Additionally, the implication that Mr. Yoho was terminated for cause is true—

which also causes his defamation claim to fail. See Pacitti v. Durr, 310 F. App’x 526,

528 (3d Cir. 2009) (“[T]ruth is an absolute defense to a defamation claim and a

defendant need only show substantial, rather than complete, truth.”); Walnut St.

Assocs., Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 102 (Pa. Super. Ct. 2009)

(“[T]ruthful statements” cannot “form the basis for a tortious interference with

contract claim.”), aff’d, 20 A.3d 468 (Pa. 2011); Redco Corp. v. CBS, Inc., 758 F.2d

970, 972 (3d Cir. 1985) (“The court may determine that allegedly defamatory

statements are true if a reasonable jury could come to only one conclusion.”).

Importantly, that implication remains true regardless of whether Mr. Yoho

actually engaged in the conduct for which he was accused. See McCarver v. PPG

Indus., Inc., 552 F. Supp. 2d 1294, 1301 (N.D. Ala. 2008) (“Whether or not McCarver

and Calder actually engaged in sexual harassment, they were indeed terminated

after being accused of violating PPG’s sexual harassment policy. Thus, any

statements disclosing the reason for the termination decision do not constitute

slander/libel.”); London v. Sears, Roebuck & Co., 458 F. App’x 649, 651 (9th Cir. 2011)

(“London’s defamation claim fails because her allegations arise from Sears’s true

statement that she was terminated for violating the discount card policy.”); Devore v.

City of Phila., No. 06-5095, 2008 WL 1793482, at *9 (E.D. Pa. Apr. 15, 2008) (“There

is no genuine issue of fact as to whether Devore was arrested and his employment

terminated. Although these actions were later found by a jury to have been illegal,

that does not change the fact that they occurred. Thus, Devore’s claim for defamation

fails because the allegedly defamatory statements were true[.]”).

In a certain sense, this conclusion aligns with the Court’s finding regarding

Mr. Yoho’s employment-discrimination claims. Mr. Yoho has failed to establish any

evidence of pretext to undermine BNY’s legitimate non-discriminatory reason for his

termination. He was terminated for cause. Any statements suggesting as much are

therefore true and not actionable. For these reasons, the Court grants summary

judgment on counts 6 and 7.

CONCLUSION

For the reasons discussed above, the Court grants Defendants’ motion for

summary judgment. The Court also denies Plaintiff’s separate summary-judgment

motion on spoliation. Final judgment will be entered in favor Defendants. An

appropriate order follows.

DATED: December 14, 2020 BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge