Daniel Pekol v. Csl Behring LLC

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 23-2530
DANIEL PEKOL,
Appellant
v.
CSL BEHRING LLC
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 2-21-cv-04404)
District Judge: Honorable Cynthia M. Rufe
Submitted Under Third Circuit L.A.R. 34.1(a)
on May 3, 2024
Before: KRAUSE, CHUNG and AMBRO, Circuit Judges
(Opinion Filed: May 6, 2024)

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OPINION*
AMBRO, Circuit Judge
CSL Behring (“CSL”) terminated its employee, Daniel Pekol, after conducting an
internal investigation and determining he both engaged in inappropriate behavior toward
coworkers and failed to adhere to company standards while accessing CSL’s secure email
platform (the “restricted account”). Pekol filed a complaint in the United States District
Court for the Eastern District of Pennsylvania alleging CSL terminated his employment
because of his sex and age and retaliated against him for engaging in protected activity,
all in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
621, et seq. District Judge Rufe granted summary judgment in favor of CSL and against
Pekol. He appeals to us. For the reasons that follow, we will affirm Judge Rufe’s well-
reasoned decision.
I. BACKGROUND
CSL, a bio-pharmaceutical company, employed Pekol in technology security from
January 2007 until August 2020 when CSL terminated him. It made him a supervisor in
2016 and later hired Ellyn Schneck to work on Pekol’s team. Based on coworker
Rebecca Daniels’ recommendation and the desire by Pekol’s supervisor, Edward Ferrara,
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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for more diversity, CSL picked Schneck over a male candidate recommended by Pekol.
He supervised Schneck until she transferred from his team in October 2019.
Several months later, Schneck reported to Human Resources that she left Pekol’s team
because he created an intolerable and toxic work environment. Based on this allegation,
Human Resources launched an internal investigation into Pekol’s behavior and
interviewed 17 employees. According to Pekol’s coworkers, he was abrasive, relentless,
and intimidating. An employee specifically remembered incidents where Pekol
aggressively banged on Schneck’s keyboard and pushed her rolling chair. CSL
determined that Pekol violated its policies by creating a toxic work environment and
suspended him.
During his suspension, CSL researched additional allegations raised during the
investigation that Pekol inappropriately gained access to the restricted account. It found
that his access to it was appropriate and permissible, but the steps he took to gain access
violated its standards for employee conduct.
Ferrara terminated Pekol in August 2020. According to Pekol, this was discriminatory
and part of a conspiracy to fire him. He filed in October 2021 a complaint in the District
Court alleging CSL terminated his employment based on sex and age and retaliated
against him for engaging in protected activity, in violation of Title VII and the ADEA.
CSL moved for summary judgment on all claims. In Pekol’s opposition, he responded
only as to his Title VII sex-discrimination claim.

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The District Court granted CSL summary judgment as to all claims in July 2023.
Pekol subsequently filed a notice of appeal only for the grant of summary judgment on
his Title VII claim.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction under 28 U.S.C. § 1331. Our
jurisdiction is from 28 U.S.C. § 1291. “We review the District Court’s disposition of a
summary judgment motion de novo, applying the same standard as the District Court.”
Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014) (quoting Doe v. Luzerne
County, 660 F.3d 169, 174 (3d Cir. 2011)). Accordingly, per Federal Rule of Civil
Procedure 56(a), summary judgment should be affirmed where there is no genuine issue
of material fact for the jury to decide. Physicians Healthsource, Inc. v. Cephalon, Inc.,
954 F.3d 615, 618 (3d Cir. 2020).
III. DISCUSSION
Pekol asserts that the District Court erred in granting summary judgment because he
established the elements of a prima facie case for sex discrimination and demonstrated
that the reasons CSL terminated him were pretextual. However, the evidence he provided
to support his claim is not enough to survive summary judgment.
Claims under Title VII that lack any direct evidence of discrimination are analyzed
under the test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973). Following this framework, Pekol can establish a prima facie case by showing 1)
he belongs to a protected class, 2) he was qualified for the position, 3) he was subject to
an adverse employment action, and 4) this occurred in circumstances giving rise to an

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inference of discriminatory motive. See id. The fourth element can be established either
by evidence of comparators who were treated more favorably than him or, more broadly,
through circumstantial evidence that shows a causal link between his membership in a
protected class and the adverse employment action. Sarullo v. U.S. Postal Serv., 352 F.
3d 789, 797-98 & n.7 (3d Cir. 2003); Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 327
(3d Cir. 2015). While Pekol satisfies the first three requirements of a prima facie case for
sex discrimination, he has failed to introduce evidence that raises an inference of
discriminatory motive.
Pekol asserts that the evidence he provided does create an inference of discrimination.
It included Ferrara’s testimony that Karen Etchberger, an upper-level CSL employee, did
not provide him with adequate information before directing him to terminate Pekol and
that Pekol’s restricted system access was proper and appropriate, plus an email Ferrara
sent Pekol stating regret for any role in firing him. Pekol also points to Ferrara’s
testimony expressing his desire to diversify his team and hire more women in his
department.
In addition, Pekol continues to claim there was a conspiracy among Etchberger,
Schneck, and Daniels to terminate him. In support, he provided the following evidence:
Ferrara’s testimony that Etchberger was the driving force of the termination, Daniels’s
email stating she had a “plan” for Pekol, and Schneck’s decision to wait over seven
months to report Pekol’s misbehavior toward her. Pekol argues this supports a “cat’s
paw” theory of discrimination, which allows employer liability to attach if a
non-decisionmaker’s discriminatory act serves as the proximate cause for an adverse

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employment action. Staub v. Proctor Hosp., 562 U.S. 411, 419 (2011); Jones, 796 F.3d at
330. Specifically, he alleges Schneck falsely reported she left his team because of the
intolerable environment, and this provided Etchberger with an excuse to terminate him.
This evidence is unpersuasive. Although Ferrara stated the restricted system access
was proper, the investigation CSL conducted concluded that the steps Pekol took to gain
access violated its standards for employee conduct. Moreover, he was terminated for
more than alleged improper system access. The investigation revealed his behavior
created a “toxic work environment” in violation of CSL’s policies. App. at 123. Pekol’s
co-workers claimed his behavior was “condescending, intrusive, demeaning,
disrespectful, argumentative, deceptive and untrustworthy,” App. at 123, corroborating
Schneck’s accusations.
In addition, as the District Court explained, Ferrara’s expressed desire to diversify the
staff does not in turn indicate a bias against men. An “employer has every right to be
concerned with the diversity of its workforce.” Iadimarco v. Runyon, 190 F.3d 151, 164
(3d Cir. 1999).
Finally, the evidence of a conspiracy between Etchberger, Schneck, and Daniels to fire
Pekol is scarce and unconvincing. The email Daniels sent regarding a “plan” was in
reference to accessing a specific office account and does not demonstrate she had ill
intent toward Pekol. Moreover, even if the conspiracy were substantiated, there is no
evidence it was motivated by Pekol’s sex. Notwithstanding whether Etchberger was the
driving force of his termination, nothing indicates it was because Pekol is a man. In sum,
there is not enough evidence to support an inference of discriminatory intent.

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Although the failure to establish a prima facie case is sufficient to grant summary
judgment to an employer, we will complete the analysis under the McDonnell Douglas
framework. If Pekol could establish a prima facie case, the burden would then shift to
CSL to articulate a legitimate nondiscriminatory reason for his termination. McDonnell
Douglas, 411 U.S. at 802-03. Here, it offered such a reason—an internal investigation
substantiating allegations that Pekol violated company policies.
The burden then shifts back to Pekol to prove the legitimate reasons offered by CSL
were a pretext for discrimination. Id. at 804. To do so, he relies on much of the same
evidence that he argues supports an inference of discrimination. Specifically, he focuses
on Ferrara’s testimony and the allegation that Schneck’s complaints were related to the
“plan” Daniels had for Pekol. Again, this evidence is not persuasive and fails to support
the allegations that CSL terminated him because of his sex.
Pekol further asserts the investigation was unfair, and therefore pretextual, because
CSL failed to interview 15 of the 18 individuals he proposed as witnesses. But, as the
District Court determined, CSL provided an adequate reason for not interviewing all of
Pekol’s proposed witnesses: they were outside the relevant group and beyond the scope
of the investigation. In any event, Human Resources interviewed Pekol and numerous
other employees. Nothing indicates its conduct was unfair. What it discovered amply
supported Pekol’s termination.
We thus affirm the District Court’s grant of summary judgment.

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