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GREEN v. EDWARD J. BETTINGER CO.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


September 10, 1984

MARCY GREEN
v.
EDWARD J. BETTINGER COMPANY

The opinion of the court was delivered by: FULLAM

MEMORANDUM AND ORDER

 FULLAM, J.

 On December 15, 1982, plaintiff, acting pro se, filed her complaint in this action alleging employment discrimination on the basis of sex and age, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., the Pennsylvania Human Relations Act, 43 P.S. § 951, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Equal Pay Act, 29 U.S.C. § 206(d), and also alleging claims for breach of contract. Although plaintiff proceeded pro se, her initial pleading appears to have been the result of competent professional draftsmanship.

 In January 1983, plaintiff filed a supplementary document, amending the complaint to reflect the fact that the defendant, originally named as a corporation, is actually a sole proprietorship. At the same time, plaintiff filed what can best be described as a conditional, or cautionary, application for the appointment of counsel. In that document, plaintiff stated that she would be unable to pay counsel except on a contingent fee basis; that she had discussed the case with several different lawyers; that the lawyers she deemed fully capable of handling the case were unwilling to do so on a contingent fee basis; and that she was not satisfied with the professional competence of the attorneys who were willing to handle the case on a contingent fee basis. She further stated that she was continuing her efforts to obtain private counsel, but wished to "alert" the court to the possibility that her efforts would prove unsuccessful, and that an appointment of counsel might become necessary. Eventually, when plaintiff's further efforts to obtain satisfactory counsel proved unavailing, this court appointed counsel to represent her, on November 7, 1983.

 Following a pretrial conference on February 21, 1984, this court, by Order dated March 2, 1984, fixed a trial date of June 11, 1984, with leave to the parties to pursue discovery in the interim. Apparently, plaintiff did serve interrogatories and requests for production of documents, which were responded to by the defendant on April 3, 1984.

 On May 11, 1984, the defendant filed a comprehensive motion for summary judgment. On May 23, 1984, counsel for plaintiff requested a postponement of the scheduled June 11 trial, for a variety of reasons, principally related to other trial commitments. In that request, plaintiff's counsel stated that he wished to complete discovery in this case in July, and respond to the pending summary judgment motion in August. The defendant did not oppose the requested postponement. Accordingly, on May 30, 1984, the parties were notified that the trial would take place on September 12, 1984.

 By letter dated June 6, 1984, counsel for defendant granted plaintiff's counsel an extension of time until July 11, 1984, to file a response to the pending motion for summary judgment. Thereafter, plaintiff's counsel requested a further extension of time until August 15, 1984, and defense counsel acquiesced in that extension.

 On August 6, 1984, plaintiff's counsel requested a further postponement of the trial until October 8, 1984. He stated that, because of the necessity of responding to the summary judgment motion by August 15, 1984, he would be unable to complete certain allegedly necessary additional discovery in advance of trial. The request was denied.

 No response to the summary judgment motion was filed by August 15. On August 22, 1984, a member of my staff telephoned plaintiff's counsel to inquire whether he intended to respond to the pending motion. Eventually, on August 31, 1984, plaintiff's counsel filed a document entitled "Preliminary Response" to the motion for summary judgment; in essence, this document is merely a request for a further extension of time in which to respond to the summary judgment motion which had been pending since May 11, 1984.

 In the August 22 telephone conversation, and in the preliminary response filed August 31, plaintiff's counsel asserted, for the first time, that certain alleged discovery disputes (not yet presented to this court) needed to be resolved, and additional discovery obtained, in aid of plaintiff's response to the motion for summary judgment. Counsel for the defendant, however, contends that the only discovery requests made by plaintiff which defendant is resisting are few in number, and have nothing to do with the issues raised by the summary judgment motion.

 Because summary judgment is a drastic remedy, because procedural defaults are disfavored, and because motions for summary judgment may not be granted by default in any event, I have concluded that the seeming dilatoriness of plaintiff's counsel in responding to the motion for summary judgment should be disregarded. On the other hand, if it is clear that the additional discovery allegedly being sought by plaintiff would add nothing of consequence to the existing record, and that there is no material factual issue to submit to a trier of fact, it is entirely appropriate to dispose of the case summarily, on the existing record.

 The only "open" discovery matters alluded to in plaintiff's preliminary response are these: (1) defendant's alleged refusal to disclose certain detailed financial information relating to salary levels in branches or departments other than that in which plaintiff was employed, and (2) the fact that the depositions of two of the principal employees of the defendant have not yet been transcribed. The defendant's motion for summary judgment is supported by lengthy and detailed affidavit, together with business records and other documentary evidence not disputed by plaintiff. The critical facts contained in the defense affidavit cover matters plainly within plaintiff's own knowledge, and are not denied in her affidavit. The documents not yet produced would shed no light on these facts. While a written transcript of the depositions of defendant's principals would be convenient and desirable, it is obvious that plaintiff and her counsel know what these witnesses said, and there is no suggestion that these witnesses said anything which would be helpful to plaintiff's cause. In short, I am not persuaded that further delay would elicit any significant additional information.

 The following facts are, on this record, undisputed:

 The Bettinger Company is an unincorporated sole proprietorship, owned and controlled by Edward J. Bettinger, its president. The Bettinger Company is a personnel-placement business. Plaintiff was employed in the "temporary division," which supplies temporary secretarial, clerical and data-processing workers to its customers. In addition, the company operates a permanent placement division, which functions as an ordinary employment agency.

 The company has a total of 13 permanent employees. In the temporary division, there are two or three "outside" sales/marketing personnel, primarily involved in soliciting new business, customer-relations, contract negotiation, trouble-shooting, and the like; and five in-house support personnel. Plaintiff was one of the "outside" sales/marketing employees; her formal job title was client service manager.

 Plaintiff was first employed by the Bettinger Company in January 1972, when she was hired by Carl Berke, who then served as sales manager of the temporary division. In December 1972, plaintiff was discharged by Mr. Berke. Shortly thereafter, however, Mr. Berke left the employ of the Bettinger Company, and established his own competing business -- a step which apparently posed a serious threat to the Bettinger Company, and which later resulted in litigation concerning Mr. Berke's alleged violations of restrictive provisions in his employment contract with Bettinger.

 In February 1973, plaintiff was rehired, this time by Mr. Bettinger himself, after discussions and negotiations which will be discussed later.

 All of the permanent employees in the temporary division, including plaintiff, were compensated on the basis of a salary plus commissions. Plaintiff's salary was $165 per week, plus $25 for expenses, or a total of $180 per week. In addition, she was entitled to be paid a 1% commission on monthly client billings of the temporary division in excess of $30,000 per month and not exceeding $45,000 per month; 2% commission on monthly billings between $45,000 and $55,000; and 3% commission on monthly billings in excess of $55,000.

 From 1973 through 1975, the total billings of the temporary division did not reach the $30,000 per-month threshold, and plaintiff received no commissions during those years. *fn1" And it was not until 1977 that monthly billings began to exceed the $55,000 level.

 In 1978, plaintiff was paid, in addition to her salary and expenses, commissions of $12,783, based on total billings for that year of $959,789. In 1979, her commissions were $19,764, on total billings of $1,178,783. And in 1980, her commissions were $25,940, on total billings of $1,386,197.

 Thus, plaintiff's total annual compensation (not including expense allowance) rose from approximately $12,000 in 1977 to $21,863 in 1978, $28,844 in 1979, and $33,443 in 1980.

 In 1977, Jeffrey Bettinger, son of the company president, joined the firm as an employee. It was the senior Bettinger's hope and intention that his son would eventually succeed to the ownership and control of the family business. In 1980, having familiarized himself with the business and having performed to his father's satisfaction, Jeffrey Bettinger was promoted to the position of sales/marketing manager, a newly created post which involved his continuing to perform services essentially similar to those performed by plaintiff (whose title was client service manager) but also involved additional responsibilities relating to supervision of the in-house staff. As of January 1, 1981, the following compensation arrangements prevailed for employees of the temporary division: Name Weekly Compensation Commission Schedule Marcy Green (plaintiff) $ 180.00 1% between $ 30,000 and $ 45,000; 2% between $ 45,000 and $ 55,000; 3% over $ 55,000 Jeffrey Bettinger $ 250.00 1% over $ 50,000 (president's son) Elaine Hill $ 200.00 1/2% between $ 40,000 and $ 50,000; 1% over $ 50,000 Deborah Dymond $ 200.00 1/2% over $ 80,000 Eleanor Kramer $ 200.00 1/2% over $ 65,000 Ann Kistner $ 220.00 None

19840910

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