Wareham v. Dollar Bank, Civil Action No. 11–326.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Writing for the CourtLENIHAN
Citation937 F.Supp.2d 656
PartiesRobert J. WAREHAM, Plaintiff, v. DOLLAR BANK, Defendant.
Docket NumberCivil Action No. 11–326.
Decision Date29 March 2013

937 F.Supp.2d 656

Robert J. WAREHAM, Plaintiff,
DOLLAR BANK, Defendant.

Civil Action No. 11–326.

United States District Court,
W.D. Pennsylvania.

March 29, 2013.

[937 F.Supp.2d 660]

Melvin L. Vatz, Grossinger Gordon Vatz, LLP, Pittsburgh, PA, for Plaintiff.

Robert F. Prorok, Lisa Lynne Garrett, Cohen & Grigsby, P.C., Pittsburgh, PA, for Defendant.


LENIHAN, United States Chief Magistrate Judge.

Currently before the Court for disposition is Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 and Western District of Pennsylvania Local Rule 56.1 (ECF No. 30). In this employment discrimination case, Plaintiff, Robert J. Wareham, asserts he was terminated by his former employer, Dollar Bank, based on his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and based on the expression of his religious beliefs in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e–5 et seq., (“Title VII”). In his Brief in Opposition to Defendant's Motion for Summary Judgment (“Pl.'s Br. in Opp'n”), Wareham now consents to the dismissal of his remaining common law claim for defamation in Count IV of the Complaint, and concedes that his discrimination claims under the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. § 951 et seq. in Count III are untimely.1 Pl.'s Br. in Opp'n at 1 n. 1 (ECF No. 40). This Court has subject matter jurisdiction over Plaintiff's remaining federal law claims pursuant to 28 U.S.C. § 1331.

Dollar Bank moves for summary judgment in its favor on Plaintiff's age and religion based discrimination claims, arguing that Wareham has failed to establish a prima facie case of discrimination based on religion. In addition, Dollar Bank argues that Wareham has failed to prove that Dollar Bank's articulated legitimate, non-discriminatory reasons for terminating him were a pretext for age discrimination and that age was the “but-for” cause of his termination.


Founded in 1855, Dollar Bank is a regional financial services organization which serves individual and business customers throughout Western Pennsylvania and Northeastern Ohio with more than 50 offices and loan centers throughout the Pittsburgh and Cleveland metropolitan areas. (McQuade Aff. 2, Def.'s App. Tab A, ECF No. 33–1.) As a savings association, Dollar Bank is required to comply with federal banking regulations and certain

[937 F.Supp.2d 661]

guidelines promulgated thereunder,3 which address standards for developing and implementing safeguards from an administrative, technical, and physical standpoint to protect the security, confidentiality, and integrity of customer information. 4 (McQuade Aff. ¶¶ 3–4.) These Guidelines also address standards with respect to Dollar Bank's proper disposal of consumer information.5 (McQuade Aff. ¶ 4.) In addition, the Guidelines also require Dollar Bank to implement a comprehensive written information security program that includes administrative, technical, and physical safeguards appropriate to its size and complexity and the nature and scope of its activities. (McQuade Aff. ¶ 5.) Dollar Bank must also exercise appropriate due diligence when selecting its service providers. (McQuade Aff. ¶ 6.)

Part 573 of the federal banking regulations sets forth privacy notice requirements including requirements for Dollar Bank to disclose nonpublic personal information about a consumer to a non—affiliated third-party. (McQuade Aff. ¶ 7.) Dollar Bank chose not to send declined consumer loans to non—affiliated third parties as the easiest and most comprehensive way to ensure the protection of nonpublic consumer information. (McQuade Aff. ¶ 8.) Large finance companies have offered to pay Dollar Bank for its declined consumer loan applications but Dollar Bank has declined those offers. (McQuade Aff. ¶ 9; Park Aff. ¶ 9, Def.'s App. Tab B, ECF No. 33–2.)

Wareham was hired by Dollar Bank in March 1994 as a Senior Loan Representative (Pl.'s Dep. At 12–13 & Ex. 2 thereto, Def.'s Tab C, ECF No. 33–3), and was promoted to Assistant Vice–President, Loan Centers, effective December 1, 1999 (O'Rorke Aff. ¶ 3, Def.'s Tab D, ECF No. 33–4). James McQuade, Senior Vice–President, began supervising Wareham in 2003. (McQuade Dep. at 10, 44, Def.'s Tab E, ECF No. 33–5.) McQuade completed Wareham's performance evaluations for 2006 through 2008, and rated his overall performance as exceeds expectations in each of those years. (Exs. 14, 15 & 16 to Pl.'s Dep., Def.'s Tab C, ECF No. 33–3 at 46–56.) In the performance evaluation completed on 1/5/07, McQuade recommended that Wareham be promoted to Vice–President, Loan Centers, effective January 2007. (Ex. 14 to Pl.'s Dep., ECF No. 33–3 at 46–47.) McQuade made the decision to retain Wareham since 2003 and gave him annual salary increases during that time, except for 2004 when McQuade's supervisor rejected his recommendation to increase Wareham's salary. (McQuade Dep. at 47–48, Def.'s App. Tab E, ECF No. 33–5; Small–Carroll Dep. at 49–51, Def.'s App. Tab F, ECF No. 33–6.)

Beginning in approximately 1996 and continuing until his termination in December of 2009, Wareham developed a cross-referral relationship with Dave Alt, a licensed

[937 F.Supp.2d 662]

mortgage broker and partner with Three Rivers Mortgage Services Co. (Pl.'s Dep. at 45, Pl.'s App. Tab 2, ECF No. 39–3; Alt Dep. at 10–11, 16–17, Def.'s App. Tab M, ECF No. 33–13 & Pl.'s App. Tab 6, ECF No. 39–7.) Alt's business included, inter alia, servicing customers with credit histories that were not acceptable to Dollar Bank—customers with “B, C, and D” credit. (Alt Dep. at 9, 81, Pl.'s App. Tab 6; Pl.'s Dep. at 45–47, Pl.'s App. Tab 2.) Wareham introduced Alt to loan center employees in Pittsburgh and Cleveland and asked them to refer their declined loans to Alt. Wareham maintains that he instructed the loan center employees that they should only refer declined loan customers to Alt if the customer requested it and authorized the release of their personal information. Customer authorizations were obtained verbally and usually communicated to Alt via telephone.

Wareham did not provide loan center employees with any instructions, nor did he implement any procedures, on how to refer the declined loans to Alt. In addition, there was no written agreement between Alt/Three Rivers Mortgage and Dollar Bank governing the referral relationship established by Wareham and Alt, no background check performed on Three Rivers Mortgage or Alt, and no written authorizations obtained from customers prior to releasing their personal information to Alt.

While employed at Dollar Bank, Wareham prepared monthly memoranda which set forth, inter alia, his marketing efforts and efforts to develop referral relationships in order to generate loan business. (Pl.'s Dep. at 76–79; McQuade Dep. at 54–55.) In these memoranda, Wareham mentions a referral relationship with Alt, but all of the references are general in nature. For example, the memos mention meetings with Alt and a third party to generate a new source of loan referrals to Dollar Bank, occasions where Wareham took Alt to Dollar Bank loan centers where he met with loan center employees, and occasions where Alt invited Wareham to attend golf outings and sporting events. See Wareham Memos dated 4/30/07, 10/20/07, 11/14/07, 12/17/07, and 1/10/08 (Pl.'s App. Tab 5, ECF No. 39–6). In one such memorandum, Wareham describes Alt as the bank's “most consistent source of referral business. He is able to get deals done that we can not. He cleans them up and sends them back.” Wareham Memo dated 1/10/08 (Pl.'s App. Tab 5, ECF No. 39–6 at 14.) Wareham initially sent these memoranda to Ed Brown,6 his direct supervisor for a couple of years, and then to McQuade after he took over as Wareham's direct supervisor in 2003. (Pl.'s Dep. at 20–21, Pl.'s App. Tab 2, ECF No. 39–3; Wareham Memos, Pl.'s App. Tab 5.)

Wareham also met monthly with the Loan Center Committee (“LCC”), which

[937 F.Supp.2d 663]

was comprised of vice-presidents from various departments plus his direct supervisor, although McQuade did not regularly attend the LCC meetings. (Smith Dep. at 11–13, Def.'s App. Tab J, ECF No. 33–10.) At these meetings, Wareham made a report on loan center operations and advised the LCC of his marketing and business development efforts. (Pl.'s Aff. ¶¶ 11–12; Smith Dep. at 11–13.) One of the members of the LCC was Joseph Smith, Senior Vice President of Marketing for Dollar Bank. (Smith Dep. at 5.) Smith did not supervise Wareham in any way. (Smith Dep. at 7.) 7 The loan center staff and Wareham had no direct report relationship with marketing, which was in a separate division. (Smith Dep. at 7–8, 10.) However, Wareham had regular communications with Smith regarding loan center marketing budgets as it related to his marketing spending. (Smith Dep. at 8–11, Def.'s Supp. App. Tab F, ECF No. 43 at 29–32.)

Wareham regularly wore a cross lapel pin throughout the duration of his employment. (Wareham Dep. at 171.) In addition to regularly wearing a cross lapel pin, Wareham routinely expressed his deeply held religious beliefs based upon his Christian faith to McQuade and Smith. (McQuade Dep. at 109, Def.'s Supp. App. Tab B, ECF No. 43 at 15; Smith Dep. at 26; Wareham Decl. ¶ 21, Pl.'s App. Tab 9, ECF No. 39–10.)

In 2001, Dollar Bank issued lapel pins (“DB lapel pins”) to corporate banking and private banking as part of an advertising campaign. (Smith Dep. at 24 & 27, Pl.'s App. Tab 4, ECF No. 39–5.) Sometime after that, Wareham came to Smith on several occasions and asked that the DB lapel pins be given to loan center personnel, and Smith complied. (Smith Dep. at 24–25.) On five or six occasions after the DB lapel pins were issued in 2001, Smith noticed that Wareham was wearing a cross lapel pin instead of the DB lapel pin, and asked why he was not wearing the DB lapel pin. (Smith Dep. at 25, 28.) On each occasion, Smith told Wareham that...

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