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Levendos v. Stern Entertainment Inc.

filed: November 9, 1988.


On Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Civil Action No. 84-3053.

Gibbons, Chief Judge, and Higginbotham, Circuit Judge, and Roth, District Judge.*fn*

Author: Higginbotham



Elizabeth Levendos appeals the summary judgment entered by the district court in favor of Appellees Stern Entertainment, Inc. and Stern Entertainment Systems, Inc., in an action alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยงยง 2000e-2000h-6 (1982).

We hold that appellant raised a genuine issue of material fact regarding whether she was constructively discharged from her job. Accordingly, we will vacate the district court's order granting summary judgment in favor of Appellees, and remand the case to the district court for further proceedings.


Beginning in 1979, Elizabeth Levendos ("Levendos") worked as a waitress at Les Nuages, a Pittsburgh restaurant owned by Stern Entertainment, Inc. and Stern Entertainment Systems, Inc. ("Stern"). Stern promoted Levendos to the positions of maitre'd and pastry chef in or about September, 1981. Joint Appendix ("App.") at 9-10.

According to an affidavit filed by Levendos, she "was the only female in a management position," and that "although males who had previously held th[e] position of maitre'd were included in management meetings, [she] was not [so] included. . . ." App. at 46 (affidavit of Elizabeth Levendos). She further stated that the general manager of the restaurant "boasted that [Levendos] would not be there long," id. at 47, that "management . . . told other employees that [she] did not fit the 'mold' for maitre'd because [she] was a woman," id., that the chef "was asked . . . by [the owner] to find a male to replace [her]," id., that "management . . . falsely accusing [her] of stealing, drinking and fraternizing with employees," id., and that "one evening [she] discovered wine bottles placed in [her] locker . . . to make it appear as if [she] were stealing." Id.

An affidavit filed by Robert Roth, one of Levendos's co-workers, stated that Levendos "had an excellent reputation at the restaurant[, that c]ustomers frequently came in and asked for her specifically," App. at 51 (affidavit of Robert Roth), and that "she was written up in the Pittsburgh Press for her excellent work." Id. at 52. He stated, moreover, his belief that the owner "liked the image of a male staff," id., that the chef "acknowledged that [there] was a plan to get rid of her, and replace her with a male friend of [the chef]," id., and that the owner refused to meet with her. Id.

Both the affidavits included the affiants' view that Stern management disliked women in general and viewed them as inferior. App. at 47, 54. Moreover, in the complaint that Levendos filed with the Equal Employment Opportunity Commission ("EEOC"), she alleged that she was not allowed to order supplies although a male manager was able to order them, id. at 13, and that she was replaced by a male friend of the chef. Id.

On April 22, 1982, Levendos resigned her position by letter to the owner, explaining that her action was precipitated because he suspected her of stealing. App. at 44.*fn1 She filed the instant action on December 21, 1984. Id. at 6. Upon defendants' motion for summary judgment, the district court found that even if the facts Levendos alleged were true, they did not establish, as a matter of law, that she was constructively discharged from her position. The court therefore granted summary judgment in favor of Stern. Levendos v. Stern Entertainment Inc., et al., 723 F. Supp. 1104, slip op. at 2 (W.D.Pa. Sept. 9, 1987), reprinted in App. at 61.*fn2


We have often stated that in our review of a summary judgment, we must employ the same test that the district court applies. See Jackson v. University of Pittsburgh, 826 F.2d 230, 232 (3d Cir. 1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 732, 98 L. Ed. 2d 680 (1988); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Pursuant to the Federal Rules of Civil Procedure, a district court may grant a summary judgment motion only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). As we were ...

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