United States District Court, Middle District of Pennsylvania
May 24, 1991
CAROL GALLO, PLAINTIFF,
JOHN POWELL CHEVROLET, INC., DEFENDANT.
The opinion of the court was delivered by: McCLURE, District Judge.
Plaintiff Carol Gallo filed this Title VII action*fn1
against her former employer, John Powell Chevrolet ("John
Powell" or "the dealership"). She alleges that she was harassed
by co-employees*fn2 and ultimately terminated due to her sex
and to her pregnancy. She alleges violations of Title VII and
the Pennsylvania Human Relations Act ("PHRA")*fn3 and seeks
back pay, attorney's fees and costs. (Plaintiff's complaint,
filed May 18, 1990).
Based upon the evidence submitted at the bench trial held
April 29 and 30, 1991, the court finds that John Powell acted
with discriminatory intent in discharging Gallo from her
position as an automobile salesperson on June 23, 1988 in
violation of Title VII and the PHRA and that its decision to
terminate her was motivated in substantial part by bias against
her due to her gender and her pregnancy.
The trial was bifurcated. Only liability issues were tried
during the first stage. We, therefore, make no findings on the
issue of damages at this time.
The court adopts the parties' undisputed facts as part of its
findings of fact.
II. FINDINGS OF FACT
The court makes the following findings of fact based upon the
testimony and exhibits*fn4 presented at trial. Incorporated in
the court's findings are facts the parties have stipulated to
be correct. (See the parties' statement of undisputed facts,
filed April, 1991.)*fn5
1. Both parties reside, or have a place of business, in the
Middle District of Pennsylvania.
2. John Powell is an automobile dealership engaged in the
sale of new and used automobiles and trucks.
3. John Powell hired Gallo as an automobile salesperson on
May 4, 1987.
4. Gallo was hired by William Struncis, the General Sales
Manager at John Powell.
5. Struncis was Gallo's immediate supervisor throughout her
tenure at the dealership.
6. Struncis based his decision to hire Gallo on her previous
sales experience and on his impression that she would perform
7. When Gallo was hired, and throughout her term of
employment at John Powell, she was the only female salesperson.
8. When Gallo was hired, John Powell employed twelve male
9. As of the date Gallo was terminated, John Powell employed
nine male salespersons, eight of whom had been so employed when
she was hired.
10. During her term of employment, the number of salespersons
at John Powell fluctuated between thirteen and nine.
11. Gallo was terminated by John Powell on June 23, 1988.
12. Gallo was compensated on a commission basis and received
a percentage of the profit for each vehicle which she sold.
13. During her job interview, Struncis told Gallo that the
other salespersons, all men, were competitive and that some of
them might object to her employment because she was a woman.
14. Salespersons compete with one another for customers who
telephone the dealership and who walk on the lot and are not
pre-existing customers of other salespersons.
15. From June to December, 1987, Gallo's performance as a
salesperson was very good and her sales figures exceeded the
16. Gallo was a very competent and aggressive salesperson.
17. Struncis encouraged Gallo and "loved" her aggressive
18. Some John Powell salesmen regarded Gallo as too
aggressive and complained about her aggressiveness to Struncis.
19. Struncis told male salespersons that they should be more
20. Salespersons at the dealership routinely worked twelve to
thirteen hours per day, generally from 9:00 a.m. to 9:00 p.m.,
five days a week. Wednesdays the workday ended at 5:00 p.m.
when the dealership closed.
21. Dealership employees sometimes played pranks on their
co-workers. Standard pranks included tampering with an
employee's telephone or leaving a phony message. Pranks of this
nature were played on Gallo, and on other employees, male and
B. Harassment of Gallo by male employees
22. Throughout her employment at John Powell, some of the
salesmen with whom Gallo worked made rude, cynical and sexist
remarks about her ability to perform the job effectively.
Sometimes these remarks were made in the presence of customers
and/or other dealership employees.
23. On one occasion, when Gallo sold a truck, she was asked
by a male salesperson, in a suggestive manner, what she "had to
do" to make the sale.
24. On another occasion, a salesman remarked to Gallo that
she must have an appointment with a male customer that day,
because she was wearing an "extra tight sweater."
25. On yet another occasion, a salesman told Gallo that she
did not belong at the dealership and should be home cooking for
26. One salesman, Dave Johnson called Gallo a "fat bitch" in
front of customers because he mistakenly thought she was
improperly talking to a former customer of his.
27. On one occasion, when Gallo attempted to obtain a vehicle
about which her customer had inquired, she was repeatedly told
that it was in "clean-up". Gallo relayed this information to
Struncis, who then contacted clean-up personnel and was told
that the vehicle had never been sent to them. Gallo then
received a telephone call from the customer, who told her
another John Powell salesperson, Donald Isaacs,
had approached her (the customer) and told her not to buy the
vehicle from Gallo, but to purchase it from him instead,
because he could give her a much better deal and could get the
vehicle to her "right now."
28. Isaacs' interference with Gallo's potential sale was a
very serious matter known in the automobile sales business as
"cutting another salesperson's throat."
29. Initially, when such incidents occurred, Gallo would
report them to Struncis. Struncis' standard response was that
he would look into the matter, or talk to the individual
C. Gallo's pregnancy
30. In approximately December, 1987, Gallo learned that she
was pregnant. Shortly thereafter, she informed Struncis.
31. Gallo informed Struncis that she intended to continue
working and planned to return to work six weeks after the birth
of the baby.
32. Gallo never deviated from her intention to return to work
at John Powell after the birth of her baby.
33. Gallo also informed Struncis that she may, at times,
require time off from work due to her age (41) and possible
complications with the pregnancy.
34. Struncis stated, in response, that he would not require
a doctor's excuse from Gallo for each such absence, but that
she should tell him in advance when she would be out.
35. Gallo was absent from work from time to time during the
winter/spring of 1988 because of her pregnancy.
36. On each such occasion, she told Struncis in advance, and
he approved the absence.
37. On or about June 9, 1988, Gallo received a disability
certificate (Plaintiff's exhibit 13) from her physician
indicating that, due to her pregnancy and related
complications, she should not work more than forty hours per
week until after the birth of the baby.
38. Gallo gave the disability certificate to Struncis.
39. Struncis placed Gallo on a forty-hour per week schedule.
40. During at least the first six months of her employment at
John Powell, Gallo had a good relationship with Struncis and
she considered him a friend and an ally who gave her tips on
becoming a better salesperson. After Gallo informed Struncis of
her pregnancy, the tenor of their relationship changed. He
became less open and congenial with her.
D. Continuing harassment
41. Harassment, in the form of offensive and sexually
discriminatory remarks continued into the spring of 1988.
42. In December, 1987, after Struncis knew of Gallo's
pregnancy, Struncis instructed her to go the attic to retrieve
a Christmas tree and boxes of decorations. Gallo told him that
she would not do this because the access way to the attic was
difficult to maneuver, the boxes were heavy and her physician
had told her not to lift heavy objects.
43. Gallo stated, however, that she would decorate the tree
if someone else would retrieve the tree and the boxes. When
Gallo told Struncis this, he swore at her and walked out of her
44. On another occasion, in February, 1988, Chet Schick, a
salesman, made disparaging remarks to her to the effect that he
hoped she did not think she could get out of helping to clean
the snow off of cars merely because she was pregnant. After she
spent most of the morning engaged in this task, he taunted her
and made some remark to the effect that only a pregnant woman
would be stupid enough to do what she had done.
45. On another occasion, Danny Myers physically grabbed Gallo
by the arm in the showroom and shoved her into a chair. An
onlooker, Dave Johnson (a salesman), laughed and said that he
thought this was the funniest thing he ever saw.
46. During Gallo's tenure at the dealership, she never saw a
male employee manhandled in this fashion.
47. At some point during the winter/spring of 1988, Struncis
told Gallo not to bother him any more by coming to him with
complaints about harassment by the salesmen and added that she
should be used to them by this time.
E. Gallo's health problems
48. Gallo suffered a host of health problems related to her
pregnancy. She suffered from headaches, badly swollen ankles,
high blood pressure, toxemia, dizziness, a mild form of
diabetes, severe pelvic pressure and problems related to the
weakness of her abdominal muscles.
F. Tent sale
49. The dealership held a tent sale during the week of June
8, 1988. Temperatures hovered in the nineties. Struncis
exempted Gallo from working at the tent sale and scheduled her
to work at the dealership instead. At least one other
salesperson was assigned to work at the dealership during the
tent sale. This imposed no hardship on the dealership since it
needed salespersons on duty there in any event. Some salesmen
resented the fact that Gallo was assigned to work at the
dealership while they had to work at the tent sale and
complained to Struncis.
G. Leave benefits
50. Sometime during the spring of 1988, Gallo had a
conversation with Struncis about the benefits to which she
would be entitled while she was on maternity leave. Gallo was
told she was entitled to receive a disability benefit of $56.00
51. Gallo expressed concerns that this amount would be
inadequate to meet her expenses, and Struncis suggested that
she contact the Pennsylvania Unemployment Bureau to find out
whether she could collect benefits while on maternity leave.
52. Gallo followed his suggestion and learned that she could
not collect unemployment compensation benefits unless she was
"laid off" by her employer due to lack of work.
53. Gallo asked Struncis whether she could be laid off so
that she could collect the benefits, and Struncis told her to
speak with George Powell.
54. Powell told Gallo that he would not lay her off so that
she could collect benefits because there was work available for
her and because any benefits that were paid to her would be
charged against the dealership.
H. Demonstrator vehicles
55. Salespersons at John Powell are given new and used
demonstrator vehicles for their personal and business use.
56. Demonstrators are typically new vehicles in the dealer's
inventory. However, toward the end of the model year (summer
and early fall), new vehicles tend to be in short supply.
Therefore, rather than reduce the sale value of remaining new
vehicles, the dealership assigns salespeople used vehicles to
use as demonstrators until the arrival of the new model year
57. Whether salespersons are assigned a new or a used model
can also depend on several other factors. If a salesperson is
assigned a new demonstrator, that vehicle is "parked" when the
milage reaches 5,000. If a salesperson has more than two parked
demonstrators, he or she is assigned a used demonstrator until
the parked vehicles are sold.
58. During the summer of 1988, salespersons were not being
assigned new demonstrators because new vehicles were in short
59. When a salesperson's demonstrator has been sold, the
salesperson is entitled to receive another demonstrator.
60. Both of Gallo's parked demonstrators were sold at the
June, 1988 tent sale.
61. By June, 1988, Gallo had been driving used demonstrators
for quite some time, and asked Struncis whether she was due to
be assigned a new model.
62. Her request was prompted by the sale of her two parked
demonstrators at the June, 1988 tent sale and by the assignment
of a new demonstrator to another salesman which she interpreted
that the "freeze" on assignment of new demonstrators had been
63. Struncis was leaving on a business trip in a few days and
told Gallo that they would discuss the matter when he returned.
64. During the week of June 20, 1988, Struncis was away from
the dealership for several days.
65. Struncis also told Gallo to look around the lot while he
was gone and select a new model she would like to have assigned
66. It was reasonable for Gallo to assume, based on her
conversation with Struncis, that he intended to assign her a
new demonstrator when he returned.
67. A new car was the only type of car Struncis could have
assigned her, since assignment of used demonstrators is subject
to the approval of Danny Myers.
68. In Struncis' absence, Danny Myers, Manager of Used Car
Sales, was Gallo's immediate supervisor.
I. Absence on June 20 and 21, 1988
69. Gallo left for the New Jersey shore on Saturday, June 18,
1988, and returned home Sunday evening.
70. While on the trip, Gallo experienced mechanical
difficulties with the John Powell demonstrator she was
operating, a 1983 or 1984 Volvo. She had the car checked by a
mechanic who told her that there was a slow transmission leak.
71. On Monday, June 20, 1988, Gallo awoke with a severe
sunburn on her feet and ankles.
72. She contacted the emergency room at Divine Providence
Hospital in Williamsport, Pennsylvania and was told that she
should keep her feet elevated and should not work. Gallo also
contacted her physician.
73. After receiving this advice, Gallo phoned the dealership
and told them that she could not come to work and explained her
74. She spoke with either Struncis or Myers, and they did not
raise any objection to her taking the day off or question her
reason for doing so.
75. Gallo's condition had not significantly improved by
Tuesday morning, and she again phoned the dealership and told
them that she was unable to work that day.
76. Gallo returned to work on Wednesday, June 22, 1988.
77. Struncis still had not returned from his trip, and Myers
was the manager on duty.
78. Myers was annoyed when Gallo told him about the problems
she had experienced with the Volvo. He told her that he was
"tired" of salespeople putting milage on his used cars, making
it more difficult for him to sell them. Gallo told Myers about
her conversation with Struncis regarding the assignment of a
new demonstrator to her. Myers then told Gallo that she may as
well take a new demonstrator now, since Struncis was scheduled
to return the following day. Myers told her to select a new
model she wanted. Gallo told him that she would take a
Chevrolet Z-24, a model well-represented on the lot.
79. If a salesperson has the permission of the manager on
duty, taking a demonstrator off of the lot is not a violation
of company policy.
80. Myers signed a slip so that Gallo could have a Z-24
washed and fueled and told her that she could take the car.
81. Gallo knew that Struncis had the final authority over
assignment of the demonstrator to her, and for that reason, did
not have it transferred to her name in the dealership records
maintained so that the dealership can always ascertain the
status and whereabouts of every vehicle in its inventory.
82. Before taking the car home that evening, Gallo checked
dealership records to make sure that the vehicle had not been
sold. It was not listed as "sold".
83. The following day, Thursday, June 23, 1988, was Gallo's
scheduled day off.
84. On June 23, 1988, Struncis telephoned Gallo and told her
that the demonstrator which she then had, a Chevrolet
Z-24, had been sold and that he needed it back on the lot as
quickly as possible.
85. Gallo returned the Z-24 to the lot on June 23, 1988.
J. Gallo's termination
86. Gallo was terminated from her job on June 23, 1988.
87. When Gallo arrived at the dealership, she went to
Struncis' office to tell him that the Z-24 was back on the lot.
88. Struncis ushered her in, closed the door, told her to be
seated, and stated that she was terminated.
89. Struncis told her that he was tired of listening to
complaints from the other salespersons about Gallo getting time
off due to her pregnancy. He then leaned over his desk and
asked rhetorically, why she had let herself get pregnant,
stating that she had a "good thing" until she got pregnant. He
added that he would never hire another woman or a black.
Struncis also told Gallo that she was sadly mistaken if she
thought she could collect unemployment benefits, because the
dealership had never paid unemployment compensation and would
never do so.
90. The main reasons later given by Struncis for his
termination of Gallo were not mentioned to her during this
conversation. Struncis did not mention her absence on Monday
and Tuesday of that week or her signing out the Z-24, nor did
he ask her for an explanation or justification for her conduct.
91. Gallo then went to her office and began packing her
belongings. While she was engaged in this task, Struncis leaned
in to her office at one point and made some comment about her
"waddling" around the showroom.
92. Gallo did not take up the matter of her termination with
George Powell or anyone else at the dealership.
93. When she was terminated, Gallo received a week's vacation
pay for vacation time to which she was entitled but had never
94. After she cleaned out her office, one of John Powell's
employees drove her home.
K. Gallo's performance
95. Gallo was never warned that she was taking excessive time
off or that her job was in jeopardy. She had never received a
written or a verbal warning that she had violated any policy or
rule of the company or that her performance was substandard.
96. The only criticism Gallo ever received from Struncis were
remarks in the nature of constructive criticism, e.g, reminders
that it was good practice to keep a follow-up file of customers
to send thank-you notes to customers, etc. and that she should
make more of an effort to do these sorts of things.
97. There is no evidence that Gallo had ever been derelict in
her duties on the job.
L. Gallo's alleged absenteeism
98. During the period from April 28 to June 15, 1988, Gallo
missed a total of four and one-half days of work, excluding the
two days she missed due to sunburn, June 20 and 21, 1988.
99. During the period from January 1, 1988 through June 15,
1988, Gallo missed a total of eight days from work due to
100. Aside from her absences for medical reasons, Gallo did
not take time off when she was scheduled to work. Nor did she
take excessively long breaks for meals.
101. Due to their exceedingly long workday, salespersons had
some flexibility in setting the length of their meal breaks and
followed an informal policy of cooperating with each other and
covering for each other so they could attend to some personal
matter during the evening.
102. Over the years, salesmen have taken extended leaves of
absence due to chronic health problems such as a back condition
or a heart condition. Those salesmen were not terminated as a
result of the absences.
M. Dealership practices in terminating other employees
103. Other salesmen terminated by John Powell in recent years
were terminated for serious and repeated infractions of company
policy, and/or in at least one instance, violating state law.
104. One salesman was terminated because he destroyed a
dealership vehicle while driving under the influence of
105. Another was terminated for lying on his employment
application by stating that he had a valid driver's license and
for operating dealership vehicles without a license.
106. Another was terminated for below average sales. He had
been warned previously about his excessive absenteeism, but was
discharged because of his poor sales performance.
107. Only one salesman was terminated for excessive
absenteeism and that was after he had been warned more than
once about this practice.
108. Another salesman, Donald Isaacs, was not terminated
despite a serious ethical violation, i.e. attempting to take
Gallo's customer. The dealership's primary reason for not
terminating Isaacs, despite the seriousness of his conduct, was
that this was his first offense. Isaacs received a written
warning for his misconduct.
III. CONCLUSIONS OF LAW
1. This Court has jurisdiction over plaintiff's Title VII
claim (Count I), pursuant to 42 U.S.C. § 2000e-5(f)(3) and
28 U.S.C. § 1391.
2. This Court has jurisdiction over plaintiff's Pennsylvania
Human Relations Act claim (Count III) as a pendent claim
arising out of the same set of operative facts as Count I.
3. Venue in this district is proper, since Gallo is a
resident of the Middle District of Pennsylvania, was employed
in this district and was terminated here.
42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1391(c).
4. Gallo was an employee of John Powell within the meaning of
42 U.S.C. § 2000e(f) and 43 P.S. § 954(c).
5. John Powell was an employer of Gallo within the meaning of
42 U.S.C. § 2000e(b) and 43 P.S. § 954(b).
6. The decision rendered by the Pennsylvania Unemployment
Compensation Referee Edsell finding that Gallo was not
discharged for "willful misconduct" has no collateral estoppel
effect on Gallo's Title VII claim.
7. Gallo has satisfied all statutory prerequisites for
bringing this action.
8. The issues raised in Gallo's unemployment compensation
proceedings are not identical to those presented in a PHRA
9. Gallo made out a prima facie case of sex and pregnancy
discrimination by showing that she was fired from a job for
which she was qualified while salesmen were treated more
10. Because plaintiff made out her prima facie case, the
burden of going forward with the evidence shifted to the
defendant to articulate a legitimate, non-discriminatory reason
for discharging her.
11. Defendant John Powell articulated a non-discriminatory
reason for Gallo's discharge: her alleged excessive absenteeism
during the two months prior to her termination and her use of
a new demonstrator while Struncis was away from the dealership.
12. The burden of going forward shifted back to the plaintiff
and merged with the plaintiff's ultimate burden to prove by a
preponderance of the evidence that the dealership's articulated
reasons were not the true reasons for the discharge, but merely
a pretext for sex or pregnancy discrimination, that is, that
the dealership intentionally discriminated against her.
13. Gallo met this burden by showing that similarly situated
male employees were not treated in the same manner she was
treated, i.e. were not discharged for similar conduct; by
showing that the only male salespersons discharged during
approximately the same time period were
guilty of far more serious misconduct than that of which she
was accused; and by showing that the dealership's articulated
reasons for her discharge were pretextual.
14. Gallo has shown that the defendant's proffered
explanation is unworthy of credence.
15. Plaintiff has proven sex and pregnancy discrimination
under both Title VII and the Pennsylvania Human Relations Act.
A. Evidentiary issues
Preliminarily we will explain our rationale for ruling as we
did on two evidentiary issues which arose prior to trial, the
first being our ruling on the Danny Myers affidavit. The court
excluded from evidence an affidavit by Danny Myers (D-10)
proffered by defendant, which purportedly relates Myers' June
22, 1988 conversation with Gallo about assignment of the new
Z-24 demonstrator to her. Myers died as the result of an
automobile accident in October, 1988, and defendant sought to
introduce his affidavit on the ground that it was not hearsay,
i.e. that it was offered not for the truth of the matter
asserted, or, in the alternative, that it is an exception to
the hearsay rule under Fed.R.Evid. 804(b)(5). The court finds
both reasons inapplicable for several reasons.
Despite defendants' protestations to the contrary, the
content of the affidavit goes to the heart of an issue in this
case. Defendant's articulated reason for Gallo's alleged
termination was her alleged insubordination in disregarding
instructions from Struncis that she wait until he returned from
his business before getting another demonstrator. The affidavit
covers the most critical aspect of that issue — what was said
in Gallo's conversation with Myers when he authorized her to
take out the Z-24. We, therefore, find implausible defendants'
argument that the affidavit is offered not for that purpose,
i.e. to establish the veracity of the statements contained
therein, but merely to show why a particular course of action
was followed, i.e. why Struncis fired Gallo.
We reject defendant's second argument as well. The affidavit
does not have sufficient indicia of trustworthiness to qualify
as a Rule 804(b)(5) exception. Rule 804(b)(5) provides:
A statement not specifically covered by any of the
foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if
the court determines that (A) the statement is
offered as an evidence of the material fact; (B)
the statement is more probative on the point for
which it is offered than any other evidence which
the proponent can procure through reasonable
effort; and (C) the general purposes of these
rules and the interests of justice will be best
served by the admission of the statement into
Myers affidavit is not dated, and information about the
circumstances surrounding its execution is sketchy. Defense
counsel stated at trial that he could not reveal the
circumstances surrounding its preparation without risking a
breach of attorney/client privilege. Counsel was able to tell
the court only that the handwritten affidavit is in his
(counsel's) handwriting, not Myers. He was unable to state
whether the affidavit was in Myers own words.
Absent more information which can satisfy us that the
affidavit is in Myers' own words and is his best recollection
of exactly what was said between him and Gallo, there is
insufficient indicia of trustworthiness to admit the affidavit.
B. Preclusive effect of unemployment compensation board
Plaintiff argues that this court should give preclusive
effect to the ruling of the Pennsylvania Unemployment
Compensation Board that Gallo was not guilty of willful
misconduct in connection with her termination. We find that the
ruling is not entitled to preclusive effect in a federal action
filed under Title VII.
With respect to plaintiff's Title VII claim, the law on this
issue is clear. In
University of Tennessee v. Elliott, 478 U.S. 788, 796, 106
S.Ct. 3220, 3225, 92 L.Ed.2d 635 (1986), the United States
Supreme Court held that Congress did not intend to give
preclusive effect in Title VII cases to judicially unreviewed
findings of a state agency. See also: Caras v. Family First
Credit Union, 688 F. Supp. 586 (D.Utah 1988) and Jones v.
Progress Lighting Corp., 595 F. Supp. 1031 (E.D.Pa. 1984) (state
FEP decision not a bar to a Title VII action). Cf. Pittman v.
LaFontaine, 756 F. Supp. 834, 844 (D.N.J. 1991), (Administrative
agency determination of the New York State Division of Human
Rights which was appealed and affirmed in all respects given
Plaintiff's argument that collateral estoppel applies to her
PHRA claim (Count III) requires more analysis. Federal courts
hearing pendent state claims must apply state law and accord a
state administrative agency determination the same preclusive
effect courts of that state would accord. Caras, supra.
Four elements are required under Pennsylvania law for
collateral estoppel to apply:
(1) The issue decided in the prior adjudication
must be identical to the one now before the court;
(2) There must be a final judgment on the merits;
(3) The parties must be the same or in privity;
(4) The parties must have had a full and fair
opportunity to litigate the issue on the merits.
All four elements must be present. Kelley v. TYK Refractories
Co., 860 F.2d 1188
, 1194 (3d Cir. 1988) and Frederick v.
American Hardware Supply Co., 384 Pa. Super. 72, 557 A.2d 779
(1989), alloc. denied, 523 Pa. 636, 565 A.2d 445 (1990), citing
Shaffer v. Pullman Trailmobile, 368 Pa. Super. 199,
533 A.2d 1023, 1026 (1987).
The application of . . . collateral estoppel is
not precluded merely because administrative
proceedings are involved. When an administrative
agency is acting in a judicial capacity and
resolves disputed issues of fact properly before
it which the parties have had an adequate
opportunity to litigate, the court will not
hesitate to apply res judicata principles.
Frederick, supra, 557 A.2d at 780. Therefore, application of
collateral estoppel is not precluded solely because the issues
were previously litigated before the Unemployment Compensation
Board. Frederick, supra, 557 A.2d at 780.
The issues decided by the Unemployment Compensation Board
were not the same as those before this court. The issue before
the Board was whether Gallo had been discharged for willful
misconduct, defined by the Pennsylvania courts as, "an act of
wanton or willful disregard of the employer's rules, a
disregard of the standards of behavior which the employer has
a right to expect of an employee, or the negligence indicating
an intentional disregard of the employer's interests or of the
employee's duties and obligations to the employer. The employer
bears the burden of proving willful misconduct connected with
the claimant's work. Frederick, supra, 557 A.2d at 780-81.
In the PHRA action, the issue is whether the plaintiff was
discharged due to her gender or due to her pregnancy, and she
bears the burden of persuading the court that she was the
object of intentional discrimination. The issues are clearly
not identical, and collateral estoppel therefore does not
apply. See generally: Johnson v. University of Wisconsin,
783 F.2d 59 (7th Cir. 1986) (Unemployment agency finding of no
misconduct did not have collateral estoppel effect in an age
discrimination action, since the claims are not identical);
Nickens v. W.W. Grainger, Inc., 645 F. Supp. 569 (W.D.Mo. 1986)
(Unemployment agency finding of no misconduct did not have
collateral estoppel effect in a section 1981 action, since the
issues are not identical); City of Reading v. Labor Relations
Board, 130 Pa.Cmwlth. 397, 568 A.2d 715 (1989) and Commonwealth
of Pennsylvania, Pennsylvania State Police v. Unemployment
Compensation Board of Review, 135 Pa.Cmwlth. 71, 578 A.2d 1360
(1990). Cf. Frederick, supra, (Unemployment Compensation Board
plaintiff had engaged in willful misconduct collaterally
estopped plaintiff from litigating wrongful discharge claim.)
C. Gallo's Title VII claim, PHRA claim and evidence of
Title VII makes it unlawful for an employer to discharge or
otherwise discriminate against an employee with respect to
compensation, terms and conditions of employment, or benefits
because of the person's sex. 42 U.S.C. § 2000e-2(a) (1988). An
amendment, the Pregnancy Discrimination Act of 1978
specifically defines discrimination on the basis of pregnancy,
childbirth, or medical conditions related to pregnancy as
unlawful sex discrimination under Title VII. 42 U.S.C. § 2000e(k)
To prevail on a claim of sex discrimination under Title VII,
a plaintiff must first make out a prima facie case by showing
(1) that she is within a protected class; (2) that she was
qualified to perform the job she held; and (3) that she was
discharged. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the
defendant articulates a legitimate nondiscriminatory reason for
the discharge, any presumption of discrimination drops from the
case. Burdine, supra, 450 U.S. at 254-55, 101 S.Ct. at 1094-95.
Claims of pregnancy discrimination filed under the PHRA are
analyzed under the McDonnell Douglas/Burdine formula and employ
federal case law in their construction of the Act. Talluto v.
RCA, 743 F. Supp. 346, 348 (M.D.Pa. 1989), (Conaboy, J.),
citing, inter alia, General Electric Corp. v. Pennsylvania
Human Relations Commission, 469 Pa. 292, 365 A.2d 649, 654-57
(1976). Discrimination based on pregnancy constitutes sex
discrimination, not handicap discrimination, under the PHRA.
Cerra v. East Stroudsburg Area School District, 450 Pa. 207,
299 A.2d 277 (1973) and Dallastown School District v.
Pennsylvania Human Relations Commission, 74 Pa.Cmwlth. 560,
460 A.2d 878 (1983).
Plaintiff's burden is a "but for" test whereby she must show
that her gender and/or her pregnancy was a reason for her
discharge. Bellissimo v. Westinghouse Electric Corp.,
764 F.2d 175 (3rd Cir. 1985) cert. denied, 475 U.S. 1035, 106 S.Ct.
1244, 89 L.Ed.2d 353 (1986). Plaintiff is not required to prove
that the discriminatory reason was the determinative factor,
"but only that it was a determinative factor." Bellissimo,
supra, 764 F.2d at 179 n. 1, citing Smithers v. Bailar,
629 F.2d 892, 899 (3d Cir. 1980). "More than one `but for' cause
can contribute to an employment decision, and if any one of
those determinative factors is discriminatory, Title VII has
been violated." Bellissimo, supra, 764 F.2d at 179 n. 1. A
plaintiff may meet her burden directly, by persuading the court
it is more likely than not that her termination was motivated
by a discriminatory reason, or indirectly, by showing that the
defendant's proffered explanation is unworthy of credence.
Burdine, supra, 450 U.S. at 257, 101 S.Ct. at 1095 and Williams
v. Giant Eagle Markets, Inc., 883 F.2d 1184, 1192 (3d Cir.
"A discharge is not per se disparate treatment. It violates
Title VII's commands only if it is made on a basis that would
not result in the discharge of a male employee."
Bellissimo, supra, 764 F.2d at 180, citing Moore v. City of
Charlotte, 754 F.2d 1100, 1106, 1110 (4th Cir. 1985). Title VII
does not protect employees from harsh or unfair employment
actions or mistakes but only from employment actions based on
unlawful considerations such as gender or pregnancy. Hawkins v.
Ceco Corp., 883 F.2d 977 (11th Cir. 1989) and Pollard v. Rea
Magnet Wire Company, Inc., 824 F.2d 557, 560 (7th Cir. 1987),
cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486
(1988) and Charles Jacquin & Cie;, 48 FEP Cases 795, 803,
1988 WL 111984 ((E.D.Pa. Oct 20, 1988), aff'd sub nom, Trail v.
Charles Jacquin Et Cie, Inc., 884 F.2d 1385, (3rd Cir. 1989).
"The implementation of neutral rules does not constitute racial
discrimination." Miller v. Yellow Freight Systems, Inc.,
758 F. Supp. 1074, 1079 (W.D.Pa. 1991) (Smith, J.)
Gallo proved by a preponderance of the evidence that the
advanced for terminating her were a mere pretext. Viewed as a
whole, the evidence showed both that the proffered reasons were
not credible and that Gallo's sex and her pregnancy more likely
than not played a role in Struncis' decision to terminate her
At trial, Struncis stated three main reasons for Gallo's
termination: (1) her insubordination in taking the Z-24 when he
had told her that they would discuss her receiving a new
demonstrator when he returned; (2) her excessive absenteeism
over the previous two months; and (3) her absence on June 20
and 21 due to a case of severe sunburn, which he characterized
as "the last straw." He did not voice any of these reasons to
Gallo when he terminated her employment.*fn6 It was not until
several months later, at the unemployment compensation hearing,
that Struncis voiced these reasons. The fact that they were not
stated to Gallo when she was terminated casts doubt on their
authenticity and suggests that they were fabricated after the
fact to justify a decision made on other grounds.
Other factors coalesce to reinforce this impression. Chief
among them is that the reasons given by Struncis do not stand
up under close scrutiny. He claimed that he considered Gallo
insubordinate in taking the Z-24 off of the lot without his
authorization. Although insubordination is a legitimate
nondiscriminatory reason for termination, Brown v. Delta Air
Lines Inc., 522 F. Supp. 1218 (S.D.Tex. 1980), aff'd
673 F.2d 1325 (5th Cir. 1982), the facts do not support Struncis' claim.
We do not believe he could have reasonably concluded she was
insubordinate in acting as she did. By defendant's admission,
Gallo had secured authorization from Myers, the manager in
charge in Struncis' absence, to take the Z-24. Although
Struncis claimed that Gallo had obtained Myers' authorization
by misrepresenting his statements to her, he admitted, on
cross-examination that Gallo could reasonably have concluded
that Struncis would assign a new demonstrator to her when he
returned. Struncis' claim that she was terminated due to
excessive absenteeism and abuse of her situation also crumbles
on close examination. Gallo's time sheets (P-13) reveal that
she was absent from work six and one-half days during her last
two months of employment. Under any reasonable standard, this
would not be considered excessive, particularly in view of the
many complications she was experiencing with her pregnancy.
Moreover, the dealership had an informal policy of allowing
an employee experiencing health problems to take an extended
leave of absence. The fact that Gallo was not given this same
opportunity, and was instead terminated when health problems
interfered with her work schedule, suggests both that her
absences from work were not the real reason for her
termination, and that she was singled out for harsher treatment
than similarly situated male employees.
Gallo was treated differently from the male employees in
other ways as well. Other salesman who committed infractions
were not summarily terminated unless the offense was so serious
that the dealership could not risk recurrence, e.g., driving a
company vehicle under the influence of alcohol and driving
without a license. Salesmen who committed infractions similar
to Gallo's alleged misconduct received a warning and were given
a second chance. See generally: Jones v. Gerwens,
874 F.2d 1534, 1540 (11th Cir. 1989), (evidence showing prior tolerance
of infractions by white employees might support inference that
new work rule was enforced discriminatorily against plaintiff)
and E.E.O.C. v. Ackerman, Hood & McQueen, Inc., 758 F. Supp. 1440
(W.D.Okla. 1991) (evidence showing prior tolerance of
infractions by white employees might support inference that new
work rule was enforced discriminatorily against plaintiff).
Struncis' testimony that Gallo's employment was terminated to
improve morale is a telling remark that adds to our impression
that the proffered reasons were a pretext. When pressed by
plaintiff's counsel as to what he meant by that remark,
Struncis equivocated and tried to discount its importance, but
in our estimation it is a revealing comment on the dealership's
true motivation in terminating Gallo. Testimony indicated that
other salesmen had complained about Gallo from time to time,
about her aggressiveness in seeking out customers, about her
exemption from the tent sale, about the time she took off due
to complications with her pregnancy, etc, and we interpret
Struncis' remark to mean that she was terminated to placate the
other salesmen and put an end to these complaints.
Struncis also testified at trial that it was "common
knowledge" at the dealership that Gallo wanted to be laid off
so that she could collect unemployment benefits while on
maternity leave. He suggested that she intentionally tried to
irritate him so that he would lay her off. We find this
suggestion implausible. The only direct evidence offered to
substantiate this purported rumor was testimony by Dave
Johnson, a salesman who readily admitted that he did not like
Gallo, had never liked her, and did his best to stay away from
her and avoid talking to her. Despite these candid admissions,
he asked the court to believe that Gallo specifically sought
him out one day to tell him that she would see to it that the
dealership laid her off. We lend no credence to Johnson'
testimony. Everything he said about their relationship belies
any conclusion that she would seek him out to relate such
intentions, had she harbored them.
Aside from the lack of direct evidence, the suggestion that
Gallo sought to be laid off is also implausible as a matter of
logic. It would make no sense for Gallo to risk losing, perhaps
permanently, a job which she performed well and had hopes of
performing with continuing success, to gain additional benefits
for the six weeks she would be on maternity leave.
An order will be entered consistent with this memorandum.
For the reasons stated in the accompanying memorandum, it is
1. Judgment be entered in plaintiff's favor on the issue of
liability. Entry of judgment shall be deferred until the
conclusion of the entire case.
2. Trial on the damage phase of this case will commence
Tuesday, July 2, 1991 at 9:30 a.m. in Courtroom No. 2 of the
Federal Courthouse in Williamsport, Pennsylvania.