78. The workmen's compensation insurance carrier authorized and effected surveillance of Ray Aquino.
79. A videotape was made of some of Ray Aquino's activities on August 30, 1984 and September 19, 1984.
80. The videotape revealed that Ray Aquino repeatedly and vigorously pulled on the cord of a lawn mower in an attempt to start the engine.
81. Ray Aquino attended the September 24, 1984, meeting at the PHRC relating to the complaint of sexual harassment by his wife Helen Aquino.
82. Sommer Maid personnel in attendance at the PHRC meeting were aware of Ray Aquino's participation in the PHRC proceedings.
83. In November, 1984, Ray Aquino called Harry Mattern to advise Sommer Maid that he was available for light duty work.
84. Neither Harry Mattern nor any other Sommer Maid employee ever called Ray Aquino back to assign him to a light duty job.
85. Light duty work was available in November, 1984; Harry Mattern had demanded that Helen Aquino come in and do light duty work when she was suffering from the corneal abrasion in November, 1984.
86. Management evaluated Dr. Spellman's report and the surveillance film sometime in November, 1984.
87. On the basis of the report and surveillance film, Sommer Maid decided to fire Ray Aquino.
88. On December 5, 1984, Ray Aquino was informed by Harry Mattern that he was terminated for malingering in violation of company policy and his contract of employment.
89. On December 14, 1984, Ray Aquino viewed the videotape accompanied by union representatives.
90. Ray Aquino was never given written reasons for his termination by Sommer Maid management.
91. By a decision in the Spring of 1988, Ray Aquino was awarded worker's compensation.
92. On May 2, 1985, Ray Aquino filed a complaint with the Equal Employment Opportunity Commission ("EEOC") (filed under #031852863), that alleged retaliation for his participation in his wife's charges of discrimination.
93. The parties have stipulated that Helen Aquino's damages, if any, were $ 18,500.53.
94. The parties have stipulated that Ray Aquino's damages, if any, were $ 21,000.00.
Helen and Ray Aquino both claim discrimination by Sommer Maid because of Mrs. Aquino's previous claim of sexual harassment, particularly by Ed Diehl. The original sexual harassment charge was the subject of an earlier complaint that was terminated by a Respondent-Claimant Agreement; it is not directly in issue in the current action. Nevertheless, an employer may not retaliate against an employee because the employee engages in protected activity under Title VII. Retaliation is a separate and distinct violation of Title VII.
Plaintiff establishes a prima facie case of retaliation if plaintiff shows: "(1) that she engaged in protected activity, which was known by the alleged retaliator; (2) that an adverse action was taken against her; and (3) that there was a causal connection between the protected activity and the retaliation." Gemmell v. Meese, 655 F. Supp. 577, 583 (E.D. Pa. 1986). To show the necessary connection, plaintiff must present sufficient evidence to create an inference that the protected activity was the likely reason for the adverse actions. See Id. at 583. After a prima facie case has been established, the burden of production shifts to defendant to articulate legitimate, non-discriminatory reasons for its actions. Upon such a showing, the burden of production shifts back to plaintiff to show that defendant's reasons were pretextual and the true motives were illegal. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Plaintiff may show that the proffered reason was pretextual "either directly by persuading the court that a discriminatory reason more likely motivated the employer [than the articulated reason] or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The ultimate burden of persuasion remains on plaintiff, even though the burden of production may shift to defendant.
Helen Aquino established a prima facie case of retaliation. Her complaint to the PHRC was a protected activity under Title VII. Sommer Maid knew of this activity because it participated in the PHRC meeting and signed the Respondent-Claimant Agreement. Sommer Maid took adverse action against Helen Aquino during the fall of 1984 by subjecting her to close job scrutiny, unique disciplinary procedures, and termination of her employment. The evidence established that Helen Aquino's PHRC complaint was the cause of the adverse actions taken against her.
Sommer Maid's articulated reason for terminating Mrs. Aquino -- her absenteeism -- was a pretext for unlawful retaliation. Mrs. Aquino has proven by a preponderance of the evidence that retaliation more likely motivated the actions taken against her than did her absences. In addition, Sommer Maid's asserted reason for its actions is unworthy of credence. After returning from surgery and receiving a warning letter, Helen Aquino was absent six times before being fired. The first such absence occurred because she was attending the PHRC meeting. Thereafter, all of her absences were for legitimate, medical reasons.
After the PHRC meeting, her behavior was scrutinized more than that of any other employee. She received unprecedented written disciplinary warnings. When she was injured on November 27, 1984, she was called by Harry Mattern, upon instructions of Frank Sexton, and ordered to report for work despite an eye injury. All of these actions showed a concerted effort by Sommer Maid to force Mrs. Aquino to leave "voluntarily" or to find an excuse to terminate her employment.
In reaching its conclusions about Mrs. Aquino's claim, the court was influenced by the credibility of the persons testifying at trial. The testimony of Helen Aquino was vague and confused on some minor matters by reason of her fragile emotional state. But, on major matters her testimony had the ring of truth and was corroborated by disinterested third-party witnesses. In contrast, the defense witnesses, all officers or present employees of Sommer Maid except for Gary and Marjorie Cooper, gave contradictory, incredible testimony that convinced the court more than the testimony of Helen Aquino that she was telling the truth. Ed Diehl and Harry Mattern's manner of testifying and the difference in the qualities of response to plaintiff and defense counsel did not convince the court of their credibility. The company President, Frank Sexton, was direct and forceful in his testimony, but unconvincing on the key issue regarding the real reason for Helen Aquino's termination in December, 1984.
Ray Aquino also established a prima facie case of retaliation. He supported his wife's PHRC complaint by attending the September 24, 1984 meeting. Within three months of the meeting, he was fired by Sommer Maid. This temporal closeness between the meeting and Ray Aquino's termination create an inference of retaliation.
The asserted reason for Ray Aquino's termination was malingering. The court finds credible the testimony that Sommer Maid believed Ray Aquino was a malingerer, even if he in fact was not malingering. Ray Aquino has not met his burden of proving that the reason proffered by Sommer Maid was pretextual.
Conclusions of Law
1. The court has jurisdiction under 28 U.S.C. § 1331 because the cause of action arises under 42 U.S.C. § 2000e, et seq.
2. Sommer Maid retaliated against Helen Aquino for filing a complaint with the PHRC and said retaliation was unlawful.
3. Sommer Maid did not retaliate against Ray Aquino because of his participation in the PHRC meeting about his wife's complaint.
4. Damages are awarded in favor of Helen Aquino in the amount of $ 18,500.53.
AND NOW, this 26th of July, 1988, in accordance day with the foregoing Findings of Fact and conclusions of Law, it is ORDERED that:
1. JUDGMENT is entered in favor of plaintiff Helen Aquino against defendant Sommer Maid Creamery, Inc. in the amount of $ 18,500.53.
2. JUDGMENT is entered in favor of defendant Sommer Maid Creamery, Inc. against plaintiff Ray Aquino.
3. On or before August 9, 1988, counsel for plaintiffs may petition for attorney's fees as to the claim of Helen Aquino only, unless the parties stipulate to the amount of fees recoverable by plaintiffs' counsel.
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