focus of plaintiff's entire career with defendant on dairy and deli and the amount of expertise his position of Product Manager for Dairy and Appy entailed, it is difficult to imagine that the different Product Manager positions are as fungible as defendant would have us believe.
Recognizing that plaintiff's qualifications are lacking in the area of frozen foods, defendant offers that it is "ready and willing" to retrain plaintiff to enable him to perform the frozen foods aspect of his new position. Defendant's Reply Brief at 7. Alternatively, defendant states that it is willing to "restructure" in some unspecified manner the product manager assignments so as to avoid placing plaintiff in charge of frozen foods or other non-perishables. Defendant's Reply Brief at 7-8. However, as defendant correctly notes, the standard for determining the feasibility of reinstatement is whether a position exists that is "comparable" to plaintiff's prior position. Sinclair v. Ins. Co. of North America, 609 F. Supp. 397 (E.D. Pa. 1984). The fact that plaintiff would have to be retrained to gain the expertise necessary to hold the position defendant is offering lends strong support to the argument that the two positions are not "essentially the same" as contended by defendant. Further, vague assertions by defendant's counsel that the Product Manager assignments could somehow be restructured so as to give plaintiff a position that is equivalent to his prior position do not suffice to establish that a comparable position currently exists to which plaintiff can be reinstated.
C. Hostility and Animosity
Even if defendant did convince this Court that a comparable position existed to which plaintiff could be reinstated, reinstatement would still be improper because of the level of hostility demonstrated in this action. Defendant insists that the record contains no meaningful evidence of hostility and, in fact, the record shows that every witness at trial described their relationship with plaintiff as "anywhere from businesslike to personally friendly." Defendant's Reply Brief at 4. Further, defendant suggests that plaintiff's continued employment with defendant to this day should somehow preclude his claims of hostility and animosity.
First, the fact that plaintiff is still employed by defendant as an Assistant Store Manager in the Shillington Store has no bearing on his potential reinstatement as a Product Manager, a position that would entail a change in location, salary, prestige and colleagues. Moreover, plaintiff has filed two affidavits since trial which detail his perception that even in his present position, an atmosphere of hostility and mistrust pervades. See, Zampino Aff. of February 24, 1993 at 7-8; Zampino Aff. of April 5, 1993. Clearly, plaintiff's continued employment with defendant as an Assistant Manager does not weaken his claim that continued animosity would interfere with his employment as a Product Manager.
Second, contrary to defendant's impression that the trial record contains no "meaningful" evidence of hostility, I find that the trial record reflects an employment relationship marred by mistrust and subtle animosity.
Specific examples of this include the testimony of defense witness Jeff Lebo, a General Manager under whom plaintiff served as an Assistant Manager. Mr. Lebo testified that when he told his supervisor Bruce Johnson, an Area Supervisor, that plaintiff would be receiving a good performance rating, Mr. Johnson gave him "one of his looks and said we'll talk about it later." (Tran. at 97, Testimony of Jeff Lebo.) Although Mr. Lebo later tried recant this testimony, the fact that he felt compelled to mention this "look" and appeared uncomfortable when trying to explain its meaning raises serious questions about plaintiff's employment relationship with Mr. Johnson.
Similarly, plaintiff's witness Jay Schwambach, a dairy and produce manager who worked under plaintiff when plaintiff was the Assistant Store Manager of the Reading Store, gave testimony that clearly supports plaintiff's perception of hostility and animosity toward him from defendant. Mr. Schwambach testified that Charlie Tirney, the General Store Manager under whom both Schwambach and plaintiff worked, "used to make remarks, sly remarks . . . like off-color remarks" about plaintiff.
(Schwambach Test. 1/26/93, Tr. at 155.)
Finally, there was much testimony at trial surrounding two incidents which plaintiff perceived to reflect the company's animosity toward him. First, plaintiff believed that in a performance review for the period from March of 1991 to November of 1991 his General Manager, Dick Francis, accused him of retail theft by connecting him with a minor employee's theft of cigarettes. (Zampino Test. 1/26/93, Tr. at 22.) Plaintiff also believed that Mr. Francis had once tampered with the time cards in one of plaintiff's departments to charge extra time in order to make him look bad. (Zampino Test. 1/26/93, Tr. at 12.) Although numerous defense witnesses testified that no official accusation of theft had been made or insinuated and that no malicious tampering occurred, the fact remains that these events did occur and did cause plaintiff and defendant to most strenuously disagree, thereby planting the seeds of mistrust and hostility.
The preceding examples illustrate the atmosphere of the subtle friction that pervaded the trial. I find that taken as a whole, the record in this action clearly reflects an unsatisfactory employment relationship between plaintiff and defendant, one characterized by distrust, hostility and resentment. I therefore find that reinstatment would not be an adequate remedy in this action.
For the reasons stated above, I find that reinstatement is not an appropriate remedy this action. I shall therefore amend the civil judgment order of February 5, 1993 to include an award of future damages, as calculated by the jury.
An appropriate order follows.
Daniel H. Huyett, 3rd, Judge
ORDER - April 23, 1993, Entered
April 21, 1993
In consideration of the parties' briefs regarding relief and for the reasons stated in the accompanying memorandum, the civil judgment order dated February 5, 1993 is hereby amended to read as follows:
IT IS ORDERED that Judgment be and the same is hereby entered in favor of plaintiff and against defendant in the amount of $ 262,000.00.
IT IS SO ORDERED.
Daniel H. Huyett, 3rd, Judge