Harrell v. PNC Fin. Servs. Grp.

Decision Date22 February 2022
Docket Number18-cv-2472 (DLF)
PartiesHOLLIS HARRELL, Plaintiff, v. PNC FINANCIAL SERVICES GROUP, INC., Defendant.
CourtU.S. District Court — District of Columbia
MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge.

Hollis Harrell brings this employment discrimination action against his former employer, PNC Financial Services Group, Inc (PNC). See Am. Compl. ¶¶ 1, 10, Dkt. 27. He alleges that the defendant terminated his employment based on his age, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq. Am. Compl. ¶ 1. Before the Court is the defendant's Motion for Summary Judgment, Dkt. 46. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND
A. Factual Background

At the outset, the Court notes that the plaintiff has repeatedly failed to comply with Local Civil Rule 7(h). This rule provides, in relevant part, that [a]n opposition to . . a [summary judgment] motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.” The plaintiff has committed two errors. First, he has purported to dispute facts introduced by the defendant without any citation to the record. See, e.g., Harrell's Statement of Material Facts in Dispute ¶¶ 25, 26, 43, 52, 119, Dkt. 50-1. When a nonmovant so errs, “the district court is under no obligation to sift through the record and should instead deem as admitted the moving party's facts that are uncontroverted by the nonmoving party's Rule 7(h) statement.” Dage v. Johnson, 537 F.Supp.2d 43, 52 (D.D.C. 2008) (cleaned up); see also Oviedo v. Wash. Metro. Area Transit Auth., 948 F.3d 386, 396-98 (D.C. Cir. 2020) (affirming grant of summary judgment against a pro se plaintiff who failed to dispute the defendant's statement of facts); Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) (holding that district court may deem facts that do not comply with Rule 56(e) or the local rule as admitted because “the district court is under no obligation to sift through the record . . . in order to evaluate the merits of that party's case”). This is because “judges ‘are not like pigs, hunting for truffles buried in briefs' or the record.” Potter v. District of Columbia, 558 F.3d 542, 553 (D.C. Cir. 2009) (Williams, J., concurring) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). The Court shares the defendant's frustration, see Def.'s Reply at 3-4, Dkt. 53, with the plaintiff's attempt to confound the defendant (and the Court) with multiple variations of facts, as reflected in Pl.'s Statement of Material Facts in Dispute, Dkt. 50-1, Pl.'s Statement of Undisputed Facts, Dkt. 50-1, and the Pl.'s Opp'n at 4-16, Dkt. 50. The Court will not consider asserted facts that do not comply with Local Rule 7(h).

Second, the plaintiff has repeatedly purported to dispute a fact by providing either legal commentary, which does not belong in a Rule 7(h) statement, or facts that are not responsive to the defendant's statement. See, e.g., Pl.'s Statement of Material Facts in Dispute ¶¶ 24, 30-32, 34, 38-39, 53. In opposing a movant's statement of facts, the nonmovant must “specifically controvert” the facts introduced by the defendant. Tarpley v. Greene, 684 F.2d 1, 7 (D.C. Cir. 1982). Providing legal commentary and related, but non-responsive, facts does not meet that requirement. Accordingly, when a nonmovant provides only those materials, there is no “genuine dispute” regarding the relevant fact, Fed.R.Civ.P. 56(a), and the Court may treat the fact as admitted, see, e.g., Burke v. Gould, 286 F.3d 513, 517-18 (D.C. Cir. 2002); SEC v. Banner Fund Int'l, 211 F.3d 602, 616 (D.C. Cir. 2000); Jackson, 101 F.3d at 154. Given the plaintiff's repeated failure to comply with the local rules, the Court will do so here.

1. Harrell and PNC: an introduction[1]

Harrell began working for PNC as a Merchant Services account executive in the greater Washington area in June 2005. Def.'s Statement of Facts ¶ 1. At the time of his hire, he was almost forty-three years old. Id. ¶ 2. He was fifty-four years old when he was terminated. Id.

The Merchants Services division of PNC works with businesses to provide “various non-cash payment processing methods, such as equipment to accept and process credit and debit card payments.” Id. ¶ 3. Account executives in this division are responsible for “develop[ing] relationships with the bankers who worked at [PNC's] branches . . . and look[ing] for referrals and prospects to bring in merchant business.” Id. ¶ 5.

All account executives “were responsible for meeting various monthly and annual sales goals and quotas, ” which “were consistently applied to all” account executives. Id. ¶ 12. These metrics were not set by Harrell's direct supervisors but rather came from higher up. Id. PNC considered a few different metrics in assessing performance: Units, Total Revenue, Discount Interchange Actor Assessment (DIA), and Self-Originated Deals (SOD). Id. ¶ 14. Units were “the number of new merchant business relationships acquired by an” account executive, and they “were the primary metric driver for overall performance” because “they were the most controllable by the [account executive] and demonstrative of an [account executive]'s efforts. Id. ¶¶ 14-15. Total Revenue “measure[d] total revenue generated from equipment sales, fees, processing volumes, etc.” Id. ¶ 14. DIA “measure[d] both new and existing account profitability.” Id. SODs “are new merchant deals generated by an [account executive] using their own efforts as opposed to partner referrals.” Id. PNC considered all categories to be “very important” such that an account executive “had to deliver on all of them.” Id. ¶ 16. Non-numerical considerations in PNC's “comprehensive, holistic view of performance” were “having strong partnerships and partner feedback, lacking any escalated issues and complaints from partners, and having a consistent routine and sales processes within their assigned region.” Id. ¶ 17.

PNC set goals for each of these metrics based on the account executives' tenure of service through designation of account executives as A, B, and C “reps, ” with higher expectations the longer an account was with the company. Id. ¶ 18. During his time at PNC, Harrell's designation varied, id. ¶ 18, but he was always aware of his “monthly and annual sales goals and quotas” from “the beginning of the year in his Compensation Plan” and throughout the year in “emails and communications from his managers further reiterating his monthly and annual sales goals and quotas, ” id. ¶ 19. Harrell “received mid-year and annual performance evaluations from all of his managers throughout his employment with PNC.” Id. ¶ 20. From April 2012 to May 2015, Harrell reported to Market Manager Keith O'Kelly, age forty-three, who in turn reported to Territory Sales Manager Linda Hunley, age fifty-one. Id. ¶ 21.

PNC has a system of progressive corrective action for employees “who engage in misconduct or deficient performance” that “includ[es], but [is] not limited to, the issuance of verbal warnings, written warnings, probation, and termination.” Id. ¶ 8. In its written Corrective Action Policy, PNC says it “does not give [an employee] the right, contractual or otherwise, to any particular level of corrective action or corrective action process prior to termination of employment.” Id. An employee on probation “can be terminated at any point within the 90-day probationary period.” Id. ¶ 9. Managers can “issue verbal and written warnings” on their own but must call into the Employee Relations Information Center (ERIC) for a consultation with an ER Specialist for [h]igher level corrective action such as probation or termination.” Id. ¶ 11. “ER Specialists have discretion to escalate a situation beyond what the manager is recommending, and can object to a proposed termination decision.” Id.

2. Harrell's performance under O'Kelly

In 2012, Harrell “was assigned to branches in the Northern Virginia and the Western Beltway regions.” Id. ¶ 22. That year, three managers in that area complained to O'Kelly about Harrell. Id. ¶ 23. Two “expressed to O'Kelly that they should potentially consider terminating” Harrell, and one complained about Harrell's “work ethic and performance” and indicated he “no longer wanted to work with” Harrell, and one expressed similar concerns over Harrell's work ethic. Id. O'Kelly substantiated these complaints about his work ethic “and observed that [he] did not spend enough time in the branches with the branch managers and the business bankers.” Id. ¶ 24. On May 12, 2012, O'Kelly issued a verbal corrective action to Harrell for “fail[ing] to meet his monthly Unit goal of 14, and because his 12-month rolling percentage to goal was 64% and not 100% or higher.” Id. ¶ 25. This corrective action required Harrell to “send out daily detailed emails to his team about the state of merchant services; spend at least four out of five days per week in the branches conducting business prospecting; and attend meetings.” Id. The document informed warned Harrell that he “must show an immediate and sustained performance in hitting his” goal or he would be subject to “further corrective action, up to and including termination of employment.” Id.

On June 5, 2012, O'Kelly issued a written warning to Harrell “for again failing to meet his Unit production goal” as an A rep because the previous month he “had achieved 10 Units, which was only 71% of his goal.” Id. ¶ 26. The written warning...

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