Case 1:18-cv-00766-CCC Document 110 Filed 01/27/22 Page ...

SL1 1769139v7 061697.00095

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BIJU GEORGE, Plaintiff, v. PENNSYLVANIA TURNPIKE COMMISSION, Defendant

: : : : : : : : : :

CIVIL ACTION NO. 1:18-cv-0766 [ELECTRONICALLY FILED]

PRETRIAL MEMORANDUM OF DEFENDANT PENNSYLVANIA TURNPIKE COMMISSION

STEVENS & LEE Theresa M. Zechman, Esq. PA Attorney ID No. 85878 Email: [email protected] Alexander V. Batoff, Esq. PA Attorney ID No. 318778 Email: [email protected] 51 South Duke Street Lancaster, PA 17602 Phone: (717) 291-1031 Fax: (610) 236-4185 Counsel for Defendant Pennsylvania Turnpike Commission

Case 1:18-cv-00766-CCC Document 110 Filed 01/27/22 of 31

SL1 1769139v7 061697.00095

TABLE OF CONTENTS

A. Brief Statement of Federal Court Jurisdiction ............................................. 1

B. Summary Statement of Facts and Liability ................................................... 2

C. Comprehensive Statement of Undisputed Facts .........................................13

D. Brief Description of Damages .......................................................................13

E. Names and Addresses of Witnesses ..............................................................14

F. Summary and Testimony of Expert Witnesses ...........................................16

G. Special Comments about Pleadings and Discovery ....................................17

H. Summary of Legal Issues Involved and Legal Authorities Relied Upon ..17

1. Even if Fairholm did accuse George of disliking White People, this would not show that George was terminated based on “illegitimate” factors. .....................................................................................................17

2. Fairholm recommended two other Asian-Indians for promotion and hire. ..........................................................................................................20

3. There is also overwhelming evidence that George would have been terminated from PTC, irrespective of any “illegitimate” factors. .....22

I. Stipulations Desired .......................................................................................23

J. Estimated Length of Trial .............................................................................24

K. Any Other Pertinent Matter .........................................................................24

L. Pre-Numbered Schedule of Exhibits ............................................................25

M. Special Verdict Questions ..............................................................................25


ii SL1 1769139v7 061697.00095

N. Certification of Notification of Requirements of and Possible Sanctions Under L.R. 16.2 ......................................................................................................25

O. L.R. 30.10 Certification with Respect to Depositions .................................25


iii SL1 1769139v7 061697.00095

TABLE OF AUTHORITIES

Cases Adeni v. Vertex, Inc., 2007 WL 2728845 (E.D. Pa. Sept. 18, 2007) ... 18, 19, 22, 23 Anderson v. Wachovia Mortg. Corp., 621 F.3d 261 (3d Cir. 2010) .......................19 Bradley v. Harcourt, Brace & Co., 104 F.3d 267 (9th Cir. 1996) ...........................23 Duffy v. Sodexho, Inc., 2008 WL 4919399 (E.D. Pa. Nov. 17, 2008) ...................21 Grossberg v. Hudson Cnty. Dept. of Human Services, 740 F.App’x. 762 (3d Cir.

2018) ....................................................................................................................21 Howard v. Blalock Elec. Services, Inc., 742 F.Supp.2d 681 (W.D. Pa. 2010) .......18 Locke v. Manor, 2020 WL 5363321 (W.D. Pa. Sept. 8, 2020) ...............................20 Miller v. Thomas Jefferson Univ. Hosp., 565 F.App’x. 88 (3d Cir. 2014) .............19 Moulouad v. Temple Univ., 2007 WL 2972595 (E.D. Pa. Oct. 9, 2007) ...............19 Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d 535 (W.D. Pa. 2009) .......................18 Waldron v. SL Indus. Inc., 56 F.3d 451 (3d Cir. 1995) ...........................................23 Watson v. Southeastern Pa. Transp. Auth., 207 F.3d 207 (3d Cir. 2000) ........ 17, 18 Wilson v. Blockbuster, Inc., 571 F.Supp.2d 641 (E.D. Pa. 2008) ...........................20 Woodard v. PHB Die Casting, 255 F.App’x. 608 (3d Cir. 2007) ...........................21 Wurtz v. Day and Zimmerman, Inc., 2009 WL 5178013 (E.D. Pa. Dec. 28, 2009)

..............................................................................................................................23

Statutes 28 U.S.C. § 1331 ........................................................................................................ 2 28 U.S.C. § 1367 ........................................................................................................ 2 42 U.S.C. § 1983 ........................................................................................................ 1 The Pennsylvania Human Relations Act ................................................................... 2 Title VII of the Civil Rights Act of 1964 ................................................................... 1

Rules Local Rule of Civil Procedure 16.2 .........................................................................25 Local Rule of Civil Procedure 16.3 ........................................................................... 1 Local Rule of Civil Procedure 30.10 .......................................................................25


SL1 1769139v7 061697.00095

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BIJU GEORGE, Plaintiff, v. PENNSYLVANIA TURNPIKE COMMISSION, Defendant

: : : : : : : : : :

CIVIL ACTION NO. 1:18-cv-0766 [ELECTRONICALLY FILED]

PRETRIAL MEMORANDUM OF DEFENDANT PENNSYLVANIA TURNPIKE COMMISSION

Defendant, Pennsylvania Turnpike Commission (“PTC”), submits this

Pretrial Memorandum after holding the L.R. 16.3 conference on January 7, 2022

with Plaintiff Biju George’s (“George”) counsel and meeting and conferring again

thereafter. PTC attaches its Comprehensive Statement of Undisputed Facts

(“CSUF”), Exhibit List, Expert Report, Proposed Points of Charge, Proposed

Verdict Forms, Proposed Voir Dire Questions, and Proposed Voir Dire Statement

as Exhibits “1” through “7.” PTC reserves the right to amend and/or supplement

this Pretrial Memorandum.

A. Brief Statement of Federal Court Jurisdiction This Court has federal question jurisdiction over George’s claims under Title

VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983, pursuant to 28 U.S.C. §


2

SL1 1769139v7 061697.00095

1331. This Court has supplemental jurisdiction over George’s claims under the

Pennsylvania Human Relations Act, pursuant to 28 U.S.C. § 1367.

B. Summary Statement of Facts and Liability George alleges that PTC, his former employer, discriminated against him on

the basis of his Asian-Indian race/national origin when it terminated his

employment as Director of the Enterprise Solution Support Group (“Director”).

George was a non-union, at-will employee at all times during his employment.

On February 9, 2015, PTC extended George an offer of hire as Director, at

PTC’s Central Administration Building in Middletown, PA. George accepted

PTC’s offer and began working on February 23, 2015.

PTC is an independent agency of the Commonwealth of Pennsylvania, with

a mission to responsibly operate and manage a safe, reliable, and efficient toll road

system, serve as a transportation services, leader, and foster innovation to better

serve its customers. When George began working for PTC, this was the first time

he had been employed by a governmental agency or held any governmental job.

Chief Information Officer (“CIO”) Scott Fairholm interviewed and

recommended George for hire. Fairholm was aware of George’s national origin

and race when he interviewed and recommended George for hire. Fairholm was

George’s direct supervisor. George understood that Fairholm had a vision for the


3

SL1 1769139v7 061697.00095

Department and that George was expected to carry out Fairholm’s vision. George

agreed with Fairholm’s vision.

Three Senior Managers reported directly to George: Don Franklin, Manager

of SAP Business Processes; Stephen Husic, Manager of SAP Business Intelligence

& Enterprise Development; and Helen Wagner, SAP Release Manager.

Franklin briefly held George’s position before George’s hire at PTC.

George felt that Franklin was a good employee and never had an issue with him.

George felt that his relationship with Husic was different because George believed

that Husic had applied for George’s job but that George had gotten the job over

Husic. Husic did not particularly enjoy working for George because Husic and his

peers felt that they did a lot of the work that George was supposed to do. Husic

believed that George did not make a positive contribution to PTC.

Fairholm had a personal practice of writing memos and notes to file

whenever he had discussions in the workplace involving important issues to

memorialize these conversations in writing. On July 20, 2015, Fairholm wrote that

he expressed his concerns to George about George’s job performance, including

his beliefs that George did not appear to understand or share Fairholm’s vision;

some women in the Department perceived that George discounted their opinions

and that they had to work harder to gain George’s acceptance; George had


4

SL1 1769139v7 061697.00095

attendance issues; George tended to not complete work assigned by Daryn “Ty”

Richins and Kathryn Hartzell; and George generally needed to improve his

relationships with all peers on the management team.

On July 28, 2015, Fairholm prompted George for updates on an important

project; George acknowledged that he had not yet contacted Microsoft regarding

the project, as required.

On August 5, 2015, Human Resources informed Fairholm that George failed

to provide HR his written notes from the last new hire interview he sat in on, as

required, and Fairholm had to prompt George to complete this task. The same day,

George did not call into an SAP negotiation conference call that Fairholm believed

to be important. Fairholm informed George: “I know you have conflicts, but this

call should take 1st priority.”

On September 11, 2015, Fairholm expressed his concerns that George failed

to properly review SAP billing invoices. Christina McNeil, one of George’s

subordinates, filed a complaint on September 13, 2015 alleging that during a

meeting on August 14, 2015, George acted “very unprofessional” by “raising his

voice very loudly and stood up and was pointing his finger very aggressively at

[her],” and that she was not comfortable talking to George again after this

situation.


5

SL1 1769139v7 061697.00095

George was aware that McNeil had complained about his interactions with

her. Myneca Ojo, Director of Diversity & Inclusion, believed George “used very

harsh words with [McNeil] to the point that she was crying and upset when she

came into my office.” Ojo believed that George’s conduct towards McNeil

warranted his termination.

George received one Performance Evaluation from Fairholm, with an

evaluation period of February 23 through July 31, 2015, and an appraisal date of

September 8, 2015. George does not know if Fairholm solicited input from others

regarding his job performance.

George received a rating of “Needs Improvement” for Work Results, with a

comment from Fairholm that: “Unfortunately since your arrival only one project

has been delivered on time and within budget. While most of these efforts began

before you arrived, you should be focusing a lot of your effort on ensuring

improvement in this area.”

While the overall rating for George’s Performance Evaluation was

“Satisfactory,” Fairholm identified several areas that he wanted George to

improve, including:

Improving the quality and quantity of interactions with your co-workers.


6

SL1 1769139v7 061697.00095

Ensuring that the interactions with your peers and subordinates promote customer service, respect, diversity, inclusiveness, collaboration, and effective communication.

Ensuring that you understand and communicate my vision for the IT Department down into your organization and ensuring a shared understanding of future direction.

Being fully present and engaged in meetings.

Being available and improving your responsiveness to requests for me, peers and subordinates.

Taking ownership of all enterprise and business software application development and maintenance aspects of our business; ensuring that projects are delivered on-time and within budget; and managing their full lifecycle as cost effectively as possible.

Learning PTC policies and management practices and ensuring that you and your team abide by them.

Working with me to know when to act independently and when to seek approval.

George met with Fairholm to discuss the evaluation and did not disagree

with Fairholm’s overall performance evaluation rating. On October 15, 2015,

George commented on his Performance Evaluation: “I am fine with the evaluation

for the first 6 months.”

George’s Performance Evaluation also recommended that he complete

training courses: Outlook Training, Documentation Training for Supervisors,

Preventing Retaliation in the Workplace, The 5 Dysfunctions of a Team, and


7

SL1 1769139v7 061697.00095

Crucial Conversations – Managers. On October 15, 2015, George commented on

his Performance Evaluation: “I would like to take the CIO course to improve my

skills and the mandatory courses too.” However, George did not complete any of

the training courses specified in his Performance Evaluation, or a CIO course,

during the remainder of his employment.

George also fell asleep at work meetings. Franklin observed George falling

asleep at work meetings.

In or about January 2016, someone reported to Fairholm that George had

screamed at Husic during a meeting attended by George, Husic, and others. Husic

did not report this to Fairholm because he believed that Fairholm would side with

George.

On January 23, 2016, Fairholm wrote, in a note to file, that he met with

George to discuss the importance of quality assurance (“QA”) reviews; Fairholm

believed that since joining PTC, George “has not been pulling his weight” and has

“put[] the organization at risk by not ensuring that QA is complete.”

George also struggled with PTC’s vendor selection process. PTC can only

use vendors for professional services that participate in the request for proposal

(“RFP”) process or are already approved by the Commonwealth. PTC must abide

by the Commonwealth Procurement regulations to obtain the services of outside


8

SL1 1769139v7 061697.00095

vendors. George frequently asked Husic various questions on procurement and

policies, which led Husic to believe George had not done his due diligence to know

and read the policies and procedures like George was supposed to.

George’s job duties included calculating the median values of vendor rates

as part of the RFP evaluation process, and George believed that this was an

important task. George was tasked with calculating the median rate for each

vendor based on the rates for each component of work required for the RFP, like

the services of a “project manager” and “senior analyst,” and then would consider

these median rates when deciding which vendors to recommend for selection to the

RFP panel. George incorrectly understood the definition of “median.”

George claimed that after around four months on the job, Fairholm asked

George if George liked White people. George claims that Fairholm asked George

this in November and December 2015. George also claims that during a fall

meeting to discuss potential vendors, Fairholm allegedly said, “I don’t want these

Indian vendors” that responded to an RFP. Fairholm denied making such

statements, and neither Franklin, Husic, nor Wagner ever witnessed Fairholm make

any inappropriate comments to anybody at work. George further admits that prior

to his termination, Fairholm had not taken a negative employment action against

him.


9

SL1 1769139v7 061697.00095

As for the alleged “Indian vendors” comment, George defines “Indian

vendors” as companies that are headquartered in India and may also do business in

the United States and claims that Fairholm was talking about vendors Infosys and

Wipro. George admits, however, that the vendors that were selected in connection

with the RFP were qualified for the job. Franklin also explained to George that

there are times when PTC did not want offshore resources for specific projects

regardless of nationality or any other characteristic since for certain projects PTC

needed on-site bodies. Off-shore resources can be used for projects that do not

require a physical presence. While George told Franklin that PTC could save

money by using offshore vendors, Franklin had to explain to George that PTC

cannot just do business with any vendors they want.

On January 21, 2016, Fairholm met with PTC CEO Mark Compton to

discuss steps for terminating George’s employment, including comments of the

nature that George’s employment is “just not working.” Fairholm met with PTC

Director of HR Sheri Norris on the same day to discuss terminating George’s

employment.

Norris was involved in the decision to terminate George’s employment, and

Norris and Fairholm had begun meeting in fall 2015 to discuss Fairholm’s

concerns about George’s job performance. Based on Norris’ discussions with


10

SL1 1769139v7 061697.00095

Fairholm, she understood that George was not meeting Fairholm’s performance

expectations, specifically with respect to project delivery and interpersonal

relationships.

Norris recalled that McNeil, Husic, and Tracy Cooper had complained about

their interactions with George. Norris did not recall the substance of Cooper’s

complaint but recalled that McNeil felt intimidated, scared, and disrespected by

George and that Husic felt George had disrespected and talked down to him during

a meeting.

Norris agreed that George’s employment should be terminated after her

discussions with Fairholm, a review of George’s performance, and a review of the

complaints against George received from other employees.

On January 28, 2016, George met with Norris and Fairholm, wherein Norris

advised George that PTC was terminating his at-will employment. When George

asked for a reason for his termination, Norris responded that it was in PTC’s best

interest to not continue the employment relationship because PTC does not give at-

will employees reasons when their employment is terminated.

George did not receive a written reprimand prior to his termination because

he was an at-will, short-term, Director-level employee whom Fairholm believed

had core performance issues and could not fulfill the duties of his position, making


11

SL1 1769139v7 061697.00095

corrective action inappropriate. George also received no salary raises or bonuses

during his employment with PTC.

On February 2, 2016, Fairholm submitted a memorandum requesting

approval to reclassify Bhaskar Suryakumar from SAP Business Process Specialist

to Senior SAP Business Process Specialist, “based upon Bhaskar’s daily work

which encompasses senior level responsibilities.” Suryakumar is of Asian-Indian

race/national origin.

On March 2, 2016, PTC asked outside immigration counsel if Fairholm’s

request to reclassify Suryakumar would affect and delay his green card application;

outside immigration counsel advised to hold the promotion for 180 days because

“[Suryakumar] cannot change the title yet” due to the impact it would have on his

visa request.

On September 2, 2016, Franklin emailed Fairholm requesting permission to

resume the upgrade process for Suryakumar; on September 7, 2016, Fairholm

responded, “I am OK with restarting the request for an upgrade. Can you work

with whomever to get the ball rolling?”

On September 7, 2016, PTC emailed outside immigration counsel: “I have

just received a formal request from IT to reclassify Bhaskar” and instructed


12

SL1 1769139v7 061697.00095

counsel to “please use the Senior SAP Business Process Specialist as his job title”

in Suryakumar’s H-1B petition.

On February 29, 2016, Fairholm signed a Candidate Recommendation Form

recommending Ashok Pedapati for hire at PTC as an SAP Business Process

Supervisor, explaining that “his experiences, personality, and approach make

Ashok a good candidate for this position.” Pedapati is of Asian-Indian

race/national origin. Pedapati’s stated salary requirement for the SAP Business

Process Supervisor position was $95,000-$100,000.

When Fairholm’s Candidate Recommendation Form was submitted to

committee, the committee requested that the SAP Business Process Supervisor

position be re-advertised “because the general practice of the Commission is that

candidate recommendations have three recommended candidates from which the

committee chooses and makes an offer to.”

After the position was re-advertised and additional candidates were

interviewed, on June 7, 2016, Fairholm signed a Candidate Recommendation Form

recommending Andrew Ciesielka, Ted McCann, and Pedapati, in alphabetical

order, for hire at PTC as an SAP Business Process Supervisor; Fairholm stated that

each candidate had the “experiences, personality and approach” to make them “a


13

SL1 1769139v7 061697.00095

good candidate for this position.” Ciesielka and McCann are both White and of

non-Indian national origin.

After the June 7, 2016 Candidate Recommendation Form was submitted to

committee, McCann was hired for the position because he had lower stated salary

requirements than Pedapati and was hired at a salary of “under $70,000.”

Pedapati never complained of any discrimination in the hiring process and still

works as a consultant for PTC.

C. Comprehensive Statement of Undisputed Facts

See Ex. 1.

D. Brief Description of Damages George seeks economic loss damages for back and front pay and medical

expenses, and compensatory damages for emotional distress.

George intends to introduce the report and testimony of forensic

psychologist Barry Zakireh, Ph.D., at trial, with respect to his emotional distress

damages, as explained in more detail below. In rebuttal, PTC intends to introduce

the report and testimony of forensic psychiatrist, Carla Rodgers, M.D., at trial.

George’s medical maladies long predate his employment with PTC and stem

from genetic predispositions to health conditions including diabetes and heart

abnormalities, compounded by an unhealthy diet and inactive lifestyle. Any health


14

SL1 1769139v7 061697.00095

conditions that George has experienced since his termination from PTC (and the

costs of treating them) have nothing to do with PTC.

George should be precluded from back and front pay damages because he

has not mitigated his damages by conducting his post-termination job search in

good faith. Rather, among other things, George misrepresented his work history in

various falsified versions of his resume that he has sent to prospective employers

and has also cursed at and made violent threats in email communications with

recruiters. Consequently, PTC learned that George also misrepresented his work

history in the resume that he submitted with his application for the Director

position—after-acquired evidence of misconduct for which PTC would have

terminated George’s employment regardless of Fairholm’s decision-making.

E. Names and Addresses of Witnesses

PTC may call the following witnesses to testify at trial, depending on

George’s case-in-chief. PTC expressly reserves the right to call any additional

witnesses identified by George for testimony at trial and incorporates them by

reference as if set forth fully herein:

1. Plaintiff Biju George 2 Thier Lane Upper Saddle River, NJ 07458

2. Scott Fairholm Former Chief Information Officer, PTC


15

SL1 1769139v7 061697.00095

604 Colby Glen Avenue Chesapeake, VA 23322

3. Stephen Husic

PTC Director of Enterprise Business Solutions 700 S. Eisenhower Blvd, P.O. Box 67676 Harrisburg, PA 17106

4. Don Franklin PTC Manager of SAP Business Processes 700 S. Eisenhower Blvd, P.O. Box 67676 Harrisburg, PA 17106

5. Bhaskar Suryakumar

PTC Senior Business Process Specialist 700 S. Eisenhower Blvd, P.O. Box 67676 Harrisburg, PA 17106

6. Ashok Pedapati

PTC Consultant 700 S. Eisenhower Blvd, P.O. Box 67676 Harrisburg, PA 17106

7. Myneca Ojo

Cultural Inclusion Program Manager 700 S. Eisenhower Blvd, P.O. Box 67676 Harrisburg, PA 17106

8. Catherine Clements-Jenkins (Individually and as Corporate Designee)

PTC Equal Employment Opportunity Officer 700 S. Eisenhower Blvd, P.O. Box 67676 Harrisburg, PA 17106

9. Sheri Norris PTC Director of Human Resources 700 S. Eisenhower Blvd, P.O. Box 67676 Harrisburg, PA 17106


16

SL1 1769139v7 061697.00095

10. Amy Martin PTC Manager of Talent Acquisition and Engagement 700 S. Eisenhower Blvd, P.O. Box 67676 Harrisburg, PA 17106

11. Carla Rodgers, M.D. (Expert Witness) Clinical Associate Professor, Psychiatry Cooper Medical School of Rowan University 2 Bala Plaza Suite 300 Bala Cynwyd, PA 19044

F. Summary and Testimony of Expert Witnesses

George’s expert, Dr. Zakireh, conducted a clinical and forensic interview of

George on August 23, 2019, and completed his corresponding report on November

1, 2019. Dr. Zakireh took George’s claims of ongoing emotional distress at face

value and identified PTC’s alleged race and national origin discrimination as the

source of this emotional distress, even though, among other things, George

received no mental healthcare treatment until over 3½ years after his termination

from PTC, and there were huge disparities between George’s scores on the BDI-II

examination during his evaluations by Dr. Zakireh and by his mental healthcare

treatment providers at the Pascack Mental Health Center just several weeks prior.

PTC’s expert, Dr. Rodgers, conducted a forensic psychological evaluation

on George on April 30 and May 1, 2020, and completed her report on May 21,

2020. This included administration of the well-validated MMPI-2 assessment,


17

SL1 1769139v7 061697.00095

wherein George responded “in an extremely exaggerated” and possibly even

“random manner,” “endorsing a wide variety of inconsistent symptoms and

attitudes” to the point that the assessment could not be validly scored. For this and

many other reasons, Dr. Rodgers concluded that George is an unreliable historian

in general to the point he has, within a reasonable degree of medical certainty,

manipulated or distorted the facts in this matter for his gain and that PTC is not

responsible for any alleged emotional distress experienced by George.

G. Special Comments about Pleadings and Discovery N/A

H. Summary of Legal Issues Involved and Legal Authorities Relied Upon 1. Even if Fairholm did accuse George of disliking White People,

this would not show that George was terminated based on “illegitimate” factors.

George’s substantive claims are limited to race and national origin

discrimination under a mixed-motive theory of liability. George must establish

that his termination from employment was the result of multiple factors, at least

one of them being “illegitimate,” and that this illegitimate factor was a motivating

factor in the termination decision. See Watson v. Southeastern Pa. Transp. Auth.,

207 F.3d 207, 215 (3d Cir. 2000). It is then PTC’s burden to demonstrate that it


18

SL1 1769139v7 061697.00095

would have terminated George’s employment irrespective of the illegitimate

factor. Id.

“An inference of race-based discrimination cannot arise simply from an

employee’s subjective belief that his or her race somehow influenced the

challenged employment action.” Howard v. Blalock Elec. Services, Inc., 742

F.Supp.2d 681, 702 (W.D. Pa. 2010). Even if Fairholm accused George of not

liking White people or made one comment about “Indian vendors” (which

Fairholm expressly denies), the evidence at trial will show that this is not

discriminatory animus, but George’s subjective beliefs. See, e.g., Mufti v. Aarsand

& Co., Inc., 667 F.Supp.2d 535, 540, 553 (W.D. Pa. 2009) (African-American

employee “repeatedly and loudly declar[ing] that she ‘did not want to work with

white people’ and that ‘white people are stupid[]’” was not unlawful

discrimination).

Adeni v. Vertex, Inc., 2007 WL 2728845 (E.D. Pa. Sept. 18, 2007) is

instructive. Although a summary judgment decision involving a pretext theory of

liability, Adeni is a useful bellwether for how a jury would likely react to a similar

case at trial under a mixed-motive theory.1 The plaintiff, also an Indian-American

claiming race and national origin discrimination, alleged that his manager “referred

1 The same is true for the other summary judgment decisions cited in PTC’s Pretrial Memorandum.


19

SL1 1769139v7 061697.00095

to Plaintiff as ‘Patel’ when asking another employee where Plaintiff was,

and…referred to Plaintiff as ‘a person living in a cave’ in an email.” Adeni, 2007

WL at *4. The plaintiff claimed that “‘Patel’ is analogous to calling an African

American the name ‘Leroy,’ and the statement ‘a person living in a cave’ was a

reference to the fact that Plaintiff was from a third world country.” Id. The court

was not convinced, and found “[t]hese remarks…fail in themselves to create any

inference of discrimination on Defendant’s part.” Id., *5.

Far more overt attempts at racial dog-whistling, like the phrase “you

people,” are not “so revealing of discriminatory animus that [they] would enable a

factfinder to conclude that a discriminatory attitude was, more likely than not, a

motivating factor in the [challenged] decision.” Miller v. Thomas Jefferson Univ.

Hosp., 565 F.App’x. 88, 92-93 (3d Cir. 2014) (quoting Anderson v. Wachovia

Mortg. Corp., 621 F.3d 261, 269 (3d Cir. 2010)) (quotation marks omitted); see

also Moulouad v. Temple Univ., 2007 WL 2972595, *1 (E.D. Pa. Oct. 9, 2007)

(decision-maker allegedly saying, “you have two strikes against you in this

University. A, that you’re not white and B, you have an accent.”).

The fact that George told others about Fairholm’s alleged comments is

immaterial because it does not make it more or less probable that Fairholm actually

made these comments. Rather, “making complaints of discrimination merely


20

SL1 1769139v7 061697.00095

conveys that [Plaintiff] believed []he was being discriminated against.” Locke v.

Manor, 2020 WL 5363321, *2 (W.D. Pa. Sept. 8, 2020) (emphasis added).

2. Fairholm recommended two other Asian-Indians for promotion and hire.

As discussed before in PTC’s Summary Statement of Facts and Liability

herein and attached CSUF, Fairholm not only did not “refuse” to promote

Suryakumar or hire Pedapati, but agreed with George that they were well-qualified

individuals worthy of the new positions that George believed they should fill.

If the jury finds that Fairholm did accuse George of not liking White people

(which, again, Fairholm denies), the fact that Fairholm encouraged Suryakumar’s

promotion after Fairholm purportedly told George, “Why did you choose this

person? So you don’t like white people?”, further shows that these alleged

statements could not have been discriminatory. See Wilson v. Blockbuster, Inc.,

571 F.Supp.2d 641, 652 (E.D. Pa. 2008) (“[Defendant] hired and promoted

African-American employees, a fact that undermines [plaintiff]’s contention that

[defendant] refused to promote him because of his race.”).

The same applies to George’s accusation that Fairholm asked George, “Is

[Pedapati] Indian as well?” when George recommended him for hire. That is

generously assuming that the jury would indulge the notion that this question could

be discriminatory, as asking about someone’s ethnic background does not show


21

SL1 1769139v7 061697.00095

discriminatory animus towards individuals of that background. Cf. Woodard v.

PHB Die Casting, 255 F.App’x. 608, 609-10 (3d Cir. 2007) (African-American

plaintiff’s “claims that he was twice asked questions using the phrase ‘you people,’

once asked what his race was, and once asked if he intended to complete a drug

deal during a bathroom break…are the type of offhand comments that are

insufficient to support a hostile work environment claim.”).

Although the hiring committee did not choose Pedapati, that does not evince

discriminatory animus by Fairholm (or the committee); McCann was selected

because he had a lower salary requirement than Pedapati and was hired at a salary

over 25% less than the bottom end of Pedapati’s requirement. See Duffy v.

Sodexho, Inc., 2008 WL 4919399, *11 (E.D. Pa. Nov. 17, 2008) (dismissing

failure-to-hire claim where “[plaintiff] was not considered because the positions

paid less than [her] self-reported salary requirement”).

Nor would a reasonable jury credit the farfetched idea that Fairholm

recommended Pedapati for hire and Suryakuymar for promotion as a ploy to hide

his discriminatory motives toward George. See Grossberg v. Hudson Cnty. Dept.

of Human Services, 740 F.App’x. 762, 764 (3d Cir. 2018) (rejecting argument that

defendant “knew [plaintiff] complained about being passed over for [a] promotion


22

SL1 1769139v7 061697.00095

and promoted her to cover up their original discriminatory decision to give the

position to someone else.”).

3. There is also overwhelming evidence that George would have been terminated from PTC, irrespective of any “illegitimate” factors.

Even if the jury concludes that one or more reasons underlying PTC’s

termination decision were illegitimate, there is still overwhelming evidence that

PTC would have made the same decision even in the absence of these

“illegitimate” factors.

Even when employment discrimination plaintiffs have longer tenure and

more evidence of positive job performance, courts still grant employers summary

judgment on pretext discrimination claims, which (once again) is instructive on the

mixed-motive discrimination claims proceeding to trial in this case. Before being

discharged pursuant to a reduction-in-force, the plaintiff in Adeni had worked for

the defendant for nearly five years, received salary increases and bonuses, and

“mixed performance reviews…which noted Plaintiff’s strengths while also

stressing a number of areas where Plaintiff could improve.” Adeni, 2007 WL at

*1. The plaintiff also had “a tense working relationship” with his manager, who

allegedly made racially charged comments to the plaintiff and ultimately

terminated the plaintiff’s employment. Id., *1-2. Nonetheless, the court found


23

SL1 1769139v7 061697.00095

there was no evidence of discrimination “other than [the plaintiff’s] own

allegations and interpretations.” Id., *5.

George’s employment was terminated less than one year after being

extended an offer of hire. See Wurtz v. Day and Zimmerman, Inc., 2009 WL

5178013, *4 (E.D. Pa. Dec. 28, 2009) (“[S]trong inference of no discriminatory

motive when both employment actions occurred within one year”) (citing Bradley

v. Harcourt, Brace & Co., 104 F.3d 267, 270-72 (9th Cir. 1996)).

Fairholm also both hired and fired George and was aware of George’s race

and national origin when he hired him. While not dispositive, “[e]vidence that the

‘same actor’ hired and fired Plaintiff is noteworthy…evidence of non-

discrimination.” Wurtz, 2009 WL at *4 (quoting Waldron v. SL Indus. Inc., 56

F.3d 451, 496 n.6 (3d Cir. 1995)). Furthermore, Fairholm had countless legitimate

and nondiscriminatory reasons for terminating George’s employment as discussed

in PTC’s Summary Statement of Facts and Liability herein and attached CSUF.

I. Stipulations Desired The Parties agree to the following factual stipulations:

1. Biju George is an individual of Indian national origin and Asian race.

2. Mr. George worked at the Pennsylvania Turnpike Commission as the Director of Enterprise Solution Support Group from February 23, 2015 until January 28, 2016.


24

SL1 1769139v7 061697.00095

The Parties agree that it is unnecessary to call medical representatives or

other record custodians as witnesses to establish the authenticity of George’s

healthcare treatment records and bills and documents created or otherwise

produced by recruiters, staffing agencies, and prospective and actual employers,

including myBasePay, Tech Talenta, ProSourceIT, Barker Search, and MLC &

Associates. The purpose is to avoid the need for the authentication of these records

only; the Parties expressly reserve all substantive objections as to the admissibility

of these records.

J. Estimated Length of Trial The Parties estimate that trial will last between three and five days.

K. Any Other Pertinent Matter George’s counsel has identified 100,000+ pages of documents retrieved by

an e-discovery vendor, in connection with a keyword term search of George’s

personal email account regarding his post-termination job search, as one single

“exhibit.”

PTC maintains that this “exhibit” (which, between the three sets requested

by the Court, would fill over 400 four-inch binders) is inappropriate because it

does not place PTC on fair notice of which documents that George actually intends

to introduce as evidence. There are also documents within this set that the Parties


25

SL1 1769139v7 061697.00095

did not intend to capture through the keyword term search which would implicate

subjects now off-limits following the Court’s ruling on the Parties’ motions in

limine (like email exchanges between George and PTC regarding the internal

discrimination complaint he filed after his termination).

L. Pre-Numbered Schedule of Exhibits See Ex. 2.

M. Special Verdict Questions See Ex. 5.

N. Certification of Notification of Requirements of and Possible Sanctions Under L.R. 16.2 PTC’s legal counsel has notified L. Evan Van Gorder, Esq., PTC’s

Employment Counsel and the person with settlement authority who will be

attending the final pretrial conference, of the requirements and possible sanctions

under L.R. 16.2.

O. L.R. 30.10 Certification with Respect to Depositions PTC’s legal counsel certifies that they have met and conferred with George’s

legal counsel with respect to irrelevancies, side comments, resolved objections, and

other matters pertaining to depositions. Since all previously deposed witnesses,

except for Helen Wagner, are available to testify at trial, the Parties agree that

these deposition transcripts will be utilized for impeachment purposes only. The


26

SL1 1769139v7 061697.00095

Parties agree that to the extent deposition transcript excerpts may be read into the

record, legal counsel shall read, and shall direct witnesses to read, substantive

questions and answers only.

As for Wagner’s deposition, the Parties are identifying excerpts from her

deposition transcript that they wish to read into the record and will meet and confer

to ensure that this is not impacted by the foregoing issues.

Respectfully submitted, STEVENS & LEE

Dated: January 27, 2022 By: /s/ Theresa M. Zechman Theresa M. Zechman, Esq. PA Attorney ID No. 85878 Email: [email protected] Alexander V. Batoff, Esq. PA Attorney ID No. 318778 Email: [email protected] 51 South Duke Street Lancaster, PA 17602 Phone: (717) 291-1031 Fax: (610) 236-4185 Counsel for Defendant Pennsylvania Turnpike Commission


SL1 1769139v7 061697.00095

CERTIFICATE OF SERVICE

I, Theresa M. Zechman, Esq., certify that on this date, I served the foregoing

Pretrial Memorandum, with corresponding Comprehensive Statement of

Undisputed Facts, List of Exhibits, Expert Report, Proposed Points of Charge,

Proposed Verdict Forms, Proposed Voir Dire Questions, and Proposed Voir Dire

Statement, upon counsel for Plaintiff by ECF filing as follows:

Ian M. Bryson, Esq. Scott E. Diamond, Esq.

Derek Smith Law Group, PLLC [email protected]

[email protected]

Dated: January 27, 2022 By: /s/ Theresa M. Zechman

Theresa M. Zechman, Esq.


Case 1:18-cv-00766-CCC Document 110 Filed 01/27/22 Page ...

Documents

Transcript of Case 1:18-cv-00766-CCC Document 110 Filed 01/27/22 Page ...