NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 21-1071

___________

Keith Yoho,

 Appellant

v.

The Bank of New York Mellon Corporation, a corporation; MSBC Securities 

Corporation, a corporation; and the Dreyfus Corporation, a corporation

________________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2-17-cv-00917)

District Judge: Honorable J. Nicholas Ranjan

________________

Submitted Under Third Circuit L.A.R. 34.1(a)

January 10, 2022

Before: AMBRO, BIBAS, and ROTH, Circuit Judges

(Opinion filed: February 1, 2022)

___________

OPINION*

___________

AMBRO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Keith Yoho appeals the District Court’s grant of summary judgment in favor of his 

former employer, MSBC Securities Corp.; its sister company, The Dreyfus Corp.; and 

their parent company, The Bank of New York Mellon (together, “BNYM”). His lawsuit 

stems from his termination by BNYM in September 2016. He challenges the District 

Court’s disposition of his claims of disability discrimination (for his alleged alcoholism), 

spoilation of evidence, along with defamation and tortious interference.

1

 We affirm the 

judgment of the District Court because it correctly determined there were no genuine 

issues of material fact and BNYM was entitled to judgment as a matter of law.

2

 

I.

Yoho worked as a Senior Wholesaler for BNYM from February 2005 through 

September 2016. Though he excelled in this role and was considered a top performer, 

Yoho was terminated following an internal investigation into alleged misconduct toward 

female coworkers at August 2016 sales conferences in Chicago and San Diego. 

Specifically, Yoho allegedly: (1) told coworker Christine Noland “‘your fat ass gives me 

such a hard-on’ or words to that effect,” App. at 921, 4; (2) placed a late-night call to 

Britney Curtin, a junior coworker, inviting her to his hotel room; (3) told coworker 

Audrey Seybert she was “too old for him to date,” and on another occasion touched her

1 Yoho also alleged age discrimination, hostile work environment, retaliation, and 

corresponding violations of the Pennsylvania Human Rights Act. As he does not appeal 

the District Court’s disposition of these claims, they are waived. See Kost v. 

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). 

2 The District Court had federal question jurisdiction under 28 U.S.C. § 1331 and 

supplemental jurisdiction under 28 U.S.C. § 1367. We have appellate jurisdiction under 

28 U.S.C. § 1291. 
3

lower back in a way that made her uncomfortable, App. at 5, 921-22; and (4) told 

coworker Bria Gilbert her Australian accent was “sexy” and that he wanted to use her 

picture in his marketing materials to increase his sales. App. at 5, 492. Noland brought 

these allegations to the attention of Raymond Pruett, Yoho’s “second-level” manager, 

who, in turn, communicated these complaints to BNYM’s Human Resources Department, 

which started the investigation. App. at 5-6. 

An employee named Thomas Galante headed that investigation, reporting to a group 

made up of BNYM in-house lawyers, HR personnel, Pruett, and Pruett’s supervisor, Joe 

Moran. Galante interviewed Pruett, Noland, Curtin, Seybert, Gilbert, an employee 

named Nick Vanderlinden, and Yoho. Galante is blind and relied on a device called a 

Stenomask to dictate his notes for many of these interviews.

3

 On September 7, 2016—

the same day Galante interviewed Yoho—BNYM terminated him, alleging he violated its 

“Code of Conduct” and “Sexual and Other Discriminatory Harassment Policy.” App. at 

6, 19, 1610-12. Pruett, as Yoho’s supervisor, bore final responsibility for this decision

and informed Yoho by phone, reading a statement prepared by HR. A few days prior, on 

September 3, Yoho phoned a person in BNYM’s confidential Employee Assistance 

Program to discuss his purported alcohol abuse. He told his close friend and immediate 

supervisor, Tim McCormick, about the call; McCormick, in turn, passed this information 

to Pruett. Alleging BNYM used the sexual misconduct investigation as pretext to fire 

him, Yoho sued. 

3 A Stenomask is a recording device that covers the user’s mouth, allowing him to dictate 

his notes without being heard by others. 
4

II.

We give a fresh, or plenary, review of motions for summary judgment, applying the 

same standard as the District Court. See Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 

265 (3d Cir. 2014). Summary judgment is proper if, after viewing the underlying facts 

“in the light most favorable to [Yoho],” id. (internal quotation marks omitted), “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). 

III.

Yoho first challenges the District Court’s holding that he could not prove disability 

discrimination because he failed to show pretext on the part of BNYM. To do so, Yoho 

had to submit evidence “from which a factfinder could reasonably 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, 764 (3d Cir. 1994). 

Yoho maintains that “inconsistencies” regarding the reasons for and the process 

surrounding his termination demonstrate pretext. We disagree. He points to

inconsistencies in the statements and testimony of witnesses who were interviewed 

regarding his alleged sexual harassment. But these inconsistencies fall short of showing a 

lack of truthfulness known to BNYM yet used by it as an excuse to fire him for his 

alcoholism. Moreover, Yoho admitted to much of the conduct at issue, including making 

inappropriate remarks to Seybert and Gilbert, and placing a late-night call to Curtin’s 

hotel room. Indeed, the only evidence Yoho cites to show BNYM may have had a 
5

discriminatory reason for his termination is his supervisors’ general knowledge that he 

drank and requested help for his alleged alcoholism. But the internal investigation began 

before Yoho called Employee Assistance, and the record shows BNYM reached a 

tentative decision to terminate him on September 2, one day before he sought assistance. 

Thus, his supervisors’ general knowledge of a possible alcohol problem does not

establish a genuine issue of material fact as to why he was fired. 

Yoho also claims BNYM was inconsistent in its position on who made the decision to 

terminate him. The record, however, shows no such inconsistencies. Rather, it identifies 

Pruett as the “responsible decisionmaker,” with other BNYM employees involved in the 

termination decision. App. at 20. Yoho further claims BNYM was inconsistent as to the 

date of his termination, pointing to allegedly contradictory evidence indicating either 

September 2 or September 7. This claim is likewise not supported by the record, which 

shows, that, while BNYM tentatively decided to terminate him on September 2 (pending 

Galante’s interview with Yoho), it made the final decision on September 7, the day he 

was terminated. As these purported inconsistencies reveal no genuine issues of material 

fact, Yoho cannot establish pretext necessary to support his disability-discrimination 

claim. We therefore have no evidence to question BNYM’s assertion that it terminated 

him for cause. 

IV.

Yoho next argues he is entitled to summary judgment as a sanction for alleged 

spoilation of evidence based on BNYM’s loss of the original audio recordings of 
6

Galante’s interview notes.

4

 As noted above, Galante dictated many of his interview notes 

using a Stenomask recording device. He then had an intern transcribe the audio 

recordings into typed notes. In discovery, BNYM provided Yoho with the typed notes 

but not the original audio recordings. Galante later testified that, after the intern 

transcribed his audio notes, he “misplaced” those recordings. App. at 21. Yoho contends

this is spoliation of evidence. 

We again disagree. To support a finding of spoliation of evidence, Yoho had to show 

bad faith on the part of BNYM. See Bull, 665 F.3d at 79 (“No unfavorable inference 

arises when the circumstances indicate that the document or article in question has been 

lost or accidentally destroyed, or where the failure to produce it is otherwise properly 

accounted for.”) (internal quotation marks omitted). But Galante testified he simply

misplaced the recordings, and Yoho failed to offer any evidence refuting this testimony. 

Likewise, Yoho failed to provide any evidence showing the typed notes would differ in 

any meaningful way from the lost audio recordings. Although these facts may show 

BNYM’s investigation was sloppy, Yoho cannot establish a genuine issue of material fact 

as to its bad faith in losing the audio recordings. 

V.

Finally, Yoho contests the District Court’s grant of summary judgment on his 

defamation and tortious-interference claims. Both are premised on a single statement 

made by Yoho’s close friend and former supervisor, McCormick, to a manager at LoCorr

4 We review the District Court’s denial of sanctions for spoilation of evidence for abuse 

of discretion. Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012).
7

Funds, a prospective employer following up on Yoho’s resume.

5

 McCormick testified 

that he tried to be “very complimentary” of Yoho’s capabilities. App. at 25. When 

pushed by LoCorr on why Yoho left BNYM, McCormick refused to get into specifics, 

replying that Yoho was “not here because he simply ran a red light.” App. at 26. The 

District Court ruled that this statement was not capable of a defamatory meaning, and, 

nonetheless, it was true. 

On appeal, Yoho argues McCormick’s statement “created a defamatory implication” 

that “put[] it out there that he was a sexual harasser.” Op. Br. at 47. Under Pennsylvania 

law,6 “[a] court must examine the meaning of the allegedly defamatory statement in 

context” to determine whether “the impression it would naturally engender, in the minds 

of the average persons among whom it is intended to circulate,” is capable “of a 

defamatory meaning.” Tucker v. Flischbein, 237 F.3d 275, 282 (3d Cir. 2001) (cleaned 

up). We agree with the District Court that McCormick’s statement is not capable of a 

defamatory meaning. If anything, it implies Yoho was terminated for cause. Yet “[a]

statement 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). Moreover, the whole of 

5 The District Court found Yoho’s tortious-interference claim to be “largely duplicative 

of [his] defamation claim” because the alleged “tortious conduct at issue is the 

defamatory statements” made by BNYM. App. at 25. We agree, and thus do not 

consider further Yoho’s tortious-interference claim. 

6 The parties agree Pennsylvania law governs Yoho’s defamation and tortiousinterference claims. 
8

McCormick’s testimony shows he was trying to help Yoho land the job, having a genuine 

and earnest intent to help his former colleague. Besides, as discussed above, Yoho was

terminated for cause, so any implication meaning as much is true. Because “[t]ruth is an 

absolute defense to defamation in Pennsylvania,” that claim fails. Bobb v. Kraybill, 354 

Pa. Super. 361, 511 A.2d 1379, 1380 (1986); see also Graboff v. Colleran Firm, 744 F.3d 

128, 136 (3d Cir. 2014) (In Pennsylvania, “[a] defendant may avoid liability for 

defamation if it shows that its statements were substantially true.”) (internal quotation 

marks omitted). 

* * * * *

For these reasons, we affirm the District Court’s grant of summary judgment in 

favor of BNYM.