The opinion of the court was delivered by: Lee, District Judge.
Before the Court is the motion for summary judgment by
defendants, the Kaufmann's Department Store and May Department
Stores Company (collectively referred to as "Kaufmann's"),
seeking judgment in its favor on Nancy Riding's five-count
complaint for damages, reinstatement and other legal and
equitable relief for alleged gender and pregnancy
discrimination, retaliation and constructive discharge under
Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations
Act ("PHRA"), Pa. Stat. Ann. tit. 43, §§ 951 et seq.
Specifically, plaintiff claims she was discriminated against on
the basis of gender and pregnancy on May 28, 1998, when she was
demoted from salaried manager of the fashion studio of
Kaufmann's advertising department to fashion photographer, an
hourly position; in November, 1998, when she was demoted from
fashion photographer to merchandise photographer, while on
extended maternity leave; and that Kaufmann's retaliated against
her for complaining about discrimination and hostile work
environment on May 28, 1998 and in November, 1998, and,
ultimately, constructively discharged her in December, 1998.
After careful consideration of defendants' motion for summary
judgment, plaintiffs response thereto, the memoranda of law in
support and in opposition, and the extensive deposition
testimony, performance evaluations and other supporting
documents and materials produced by the parties, the Court finds
that plaintiff has failed to demonstrate the existence of
genuine issues of material fact as to essential elements of each
of her claims. The Court will grant summary judgment in favor of
defendants, and dismiss the case.
Summary judgment under Fed.R.Civ.P. 56(c) is appropriate "`if
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 a judgment as a matter of law.'"
Woodside v. School Dist. of Philadelphia Bd. of Educ.,
248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States,
238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). An issue
of material fact is genuine only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
In deciding a summary judgment motion, the court must "view
the evidence . . . through the prism of the substantive
evidentiary burden" to determine "whether a jury could
reasonably find either that the plaintiff proved his case by the
quality and quantity of the evidence required by the governing
law or that he did not." Anderson v. Consol. Rail Corp.,
297 F.3d 242, 247 (3d Cir. 2002), quoting Liberty Lobby, 477 U.S.
at 254, 106 S.Ct. 2505. When the non-moving party will bear the
burden of proof at trial, the moving party's burden can be
"discharged by `showing' — that is, pointing out to the District
Court — that there is an absence of evidence to support the
non-moving party's case." Celotex Corp. v. Catrett,
477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If the moving party has carried this burden, the burden shifts
to the non-moving party who cannot rest on the allegations of
the pleadings and must "do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986); Petruzzi's IGA Supermarkets,
Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.
1993). To meet its burden at this point, the non-moving party
must present "specific facts showing that there is a genuine
issue for trial," Fed.R.Civ.P. 56(e), and cannot rely on
unsupported assertions, conclusory allegations, or mere
suspicions. Williams v. Borough of West Chester, 891 F.2d 458,
460 (3d Cir. 1989), citing Celotex, 477 U.S. at 325, 106 S.Ct.
2548. Instead, the non-moving party must point "to sufficient
cognizable evidence to create material issues of fact concerning
every element as to which the non-moving party will bear the
burden of proof at trial." Simpson v. Kay Jewelers, Div. Of
Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting
Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir. 1994).
In deciding a summary judgment motion, a court must view the
facts in the light most favorable to, draw all reasonable
inferences, and resolve all doubts, in favor of the nonmoving
party. Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir.
2001); Woodside, 248 F.3d at 130; Heller v. Shaw Indus.,
Inc., 167 F.3d 146, 151 (3d Cir. 1999). Further, the court must
not engage in credibility determinations at the summary judgment
stage. Simpson, 142 F.3d at 643 n. 3, quoting Fuentes, 32
F.3d at 762 n. 1.
Undisputed Background Facts
The parties have submitted Joint Stipulations of Fact ("J.S.")
for trial which set forth the following undisputed facts.
Plaintiff, Nancy Riding, is an experienced photographer who was
hired by defendant May Department Stores Company, d/b/a
Kaufmann's Department Store ("Kaufmann's") on or about May 26,
1992, to work in the photo studio of its advertising department
in Pittsburgh. J.S., ¶¶ 1-9. Ms. Riding is married and has two
children, her first being born in November 1995, when she took
family medical leave for the birth, and her second on September
19, 1998. J.S., ¶¶ 13-14. Ms. Riding took family medical leave
beginning in June 1998, in connection with the pregnancy of her
second child. J.S., ¶ 16.
At relevant times, the hierarchy in Kaufmann's advertising
department consisted of: Jerry Eccher, Senior Vice President of
Advertising/Sales Promotions; Mary Ann Brown, Vice President
Advertising; Ann Corbett, Vice President and Creative Director;
Erika Kirwin, Division Vice President and Director of Special
Promotions; and Joanne Pagnanelli, Vice President and Director
of Fashion Merchandise. J.S., ¶ 10. Joanne Pagnanelli reported
directly to Jerry Eccher, as did the other officers. J.S., ¶ 11.
Ann Corbett replaced the previous Vice President and Creative
Director, Barbara Mihopulos, in 1996. J.S., ¶¶ 12.
From May 1992 until May 1996, Ms. Riding worked as the studio
manager/fashion photographer, in which capacity she managed both
components of the photo studio, the fashion studio and the home
studio, and also worked as a fashion photographer. J.S., ¶¶
17-18. As studio manager/fashion photographer, plaintiff
reported to the creative director (first Barbara Mihopolous,
then Ann Corbett). J.S., ¶ 19. Michael Kupniewski became
assistant home studio manager in 1993. J.S., ¶ 20. In May 1996,
Ms. Riding was relieved of responsibility for the home studio
and her title changed to fashion studio manager/fashion
photographer. J.S., ¶ 21. Also in May 1996, Edward "Rock" Machen
became home studio manager at Kaufmann's; he reported directly
to Joanne Pagnanelli, as did Ms. Riding. J.S., ¶¶ 22-23. On May
28, 1998, Mr. Machen was promoted to photo studio manager and
Ms. Riding was informed she was being demoted, effective June 1,
1998. J.S., ¶¶ 24-25. "As a result of the demotion, Ms. Riding's
responsibilities and title were changed and she became an hourly
employee." J.S., ¶ 24.
On or around October 19, 1998, plaintiff sent a letter to a
Steve Hersh in Human Resources, requesting information about the
position to which she would be returning from her family medical
leave. Mr. Hersh requested that Andrew Melissinos, also of Human
Resources, respond to Ms. Riding's request. J.S. ¶ 26. Mr.
Melissinos spoke with Ms. Riding on November 23, 1998, and
informed plaintiff she would be returning as a "Merchandise
Photographer." J.S., ¶ 27. Plaintiff found that change to her
job title and her duties as a merchandise photographer
unacceptable, and rejected this position in December, 1998.
Plaintiff did not return to work for Kaufmann's.
Ms. Riding claims she was demoted by Kaufmann's in May 1998
from fashion studio manager to fashion photographer because of
her pregnancy and/or her sex. Kaufmann's denies plaintiff was
discriminated against in any way, and asserts it demoted Ms.
Riding in May 1998 for legitimate, non-discriminatory reasons.
Ms. Riding also claims she was further demoted in November 1998
from fashion photographer to merchandise photographer, and
because of that intolerable demotion and other discriminatory
conduct, was constructively discharged because of her pregnancy
and/or her sex and/or in retaliation for having complained to
Kaufmann's about pregnancy and sex discrimination. Kaufmann's
denies it discriminated or retaliated against Ms. Riding in any
way, and further asserts she was not demoted in November 1998
nor was she constructively discharged. Joint Stipulation With
Regard to Brief Statement of Claims and Defenses for Use in
Preliminary Instructions to Jury and With Regard to Expert
Witnesses (Document No. 61), at 1-2.
Disputed Background Scenario
Practically every other fact and inference in this case is
disputed, reflecting a fundamental difference of perception
and opinion about Ms. Riding's employment history and
performance as a manager at Kaufmann's.
According to Kaufmann's, almost from the beginning Nancy
Riding was a "difficult employee who caused numerous personality
conflicts with her colleagues and subordinates. As a result, she
was a poor manager of the Studio." Defendants' Memorandum in
Support of Summary Judgment, at 1. Kaufmann's claims Ms. Riding
was condescending and negative toward colleagues and
subordinates which created constant tension in the studios, and
which resulted in several employees requesting transfers or
Kaufmann's. Although Kaufmann's never questioned Ms. Riding's
photographic skills, which by all accounts were outstanding, it
was always concerned with her perceived management deficiencies,
as indicated in each of her annual evaluations from 1992 through
1997, and ultimately, it decided to relieve her of all
managerial responsibilities in 1998, but without loss of pay or
benefits. In fact, Ms. Riding was the highest paid salaried
employee of the photo studio, and she remained the highest paid
employee — salaried or hourly — even after her demotion in May,
1998, by about $15,000.
Ms. Riding's account of her employment history is radically
different from Kaufmann's. According to plaintiff, not only was
she an excellent photographer but also an outstanding manager
whose projects were always timely and of high quality. While
plaintiff does not contest that there were, from time to time,
some conflicts between her and various co-workers and
subordinates, and "creative tension" in the studios, she asserts
that such tension is endemic when dealing with artistic persons,
and claims Kaufmann's exaggerates the magnitude of the tension
and personality conflicts that existed in the studio. Ms. Riding
also claims other male managers had similar complaints lodged
against them and personality clashes with employees and
colleagues, but Kaufmann's never demoted them. Moreover, Ms.
Riding asserts she experienced gender and pregnancy
discrimination throughout her employment with Kaufmann's,
recounting several incidents to support that claim, and she
attributes her demotions and alleged constructive discharge in
1998 to discrimination on the basis of sex and pregnancy and
retaliation for her complaints, not to Kaufmann's purported
dissatisfaction with her managerial performance, which she
claims is "pretext."
While perceptions of many of the specific events and incidents
are inherently subjective (therefore the inferences derived
therefrom are rarely either black or white), nevertheless, the
Court finds Kaufmann's perception of plaintiffs employment
history enjoys substantially greater support in the record than
Ms. Riding's. Viewing the facts in the light most favorable to,
and drawing all reasonable inferences and resolving all doubts
in favor of, Ms. Riding, the nonmoving party, and without
belaboring every factual dispute detailed in the parties'
respective statements of material facts and memoranda, the Court
will make additional summary judgment findings as it develops
The Burdens of Proof and Substantive Evidentiary Standards
Employment discrimination claims under the Title VII and the
PHRA*fn1 can be established in one of two ways: (1) by direct
evidence that the employer's decision was motivated by
discrimination; or (2) by indirect evidence which creates an
inference of discrimination under the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973).
If plaintiff offers sufficient direct evidence of
discrimination, the case is a "mixed motives" case wherein the
burden of proof shifts to the employer, which must show that it
would have made the same employment decision even absent the
illegitimate discriminatory factor. Simpson, 142 F.3d at 644
n. 5, citing Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n.
12, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).
"`Direct evidence of discrimination would be evidence which, if
believed, would prove the existence of the fact [in issue]
without inference or presumption.'" . . . However, "evidence is
not direct where the trier of fact must infer the discrimination
. . . from an employer's remarks." Torre v. Casio Inc.,
42 F.3d 825, 829 (3d Cir. 1994) (citations omitted). That is,
direct evidence is overt or explicit evidence which directly
reflects a discriminatory bias by a decision maker. Armbruster
v. Unisys Corp., 32 F.3d 768, 778, 782 (3d Cir. 1994).
As the Court of Appeals for the Third Circuit most recently
stated in Anderson v. Consol. Rail Corp., 297 F.3d at 248:
In Connors v. Chrysler Financial Corp., we
recognized that a plaintiff can prove
discrimination by direct evidence, but noted that a
plaintiff confronts a "high hurdle." 160 F.3d 971,
976 (3d Cir. 1998). In quoting Justice O'Connor's
controlling opinion in Price Waterhouse v.
Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d
268 (1989), we held that the evidence must
demonstrate that the "decision makers placed
substantial negative reliance on an illegitimate
criterion in reaching their decision." Connors,
160 F.3d at 976. In other words, the evidence must
reveal a sufficient discriminatory animus making it
unnecessary to rely on any presumption from the
prima facie case to shift the burden of production.
The Court of Appeals for the Third Circuit summarized the
McDonnell Douglas framework in indirect evidence cases:
In indirect evidence cases, the plaintiff must make a
prima facie showing of discrimination. If the
plaintiff cannot do so, the defendant is entitled to
judgment as a matter of law. If the plaintiff does
establish a prima facie case, the defendant must
produce some evidence of a legitimate,
nondiscriminatory reason for the adverse employment
action. Once it does so the burden remains with the
plaintiff to prove by a proponderance of the evidence
that the proffered reason was pretextual. . . .
Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 n. 4 (3d
Cir. 1999) (citations omitted).
The familiar McDonnell Douglas burden-shifting analysis is
also applicable to claims of retaliation under either the PHRA
or Title VII. See Robinson v. City of Pittsburgh,
120 F.3d 1286, 1300 (3d Cir. 1997); Delli Santi v. CNA Ins. Companies,
88 F.3d 192, 199 (3d Cir. 1996).
Where the employer proffers plausible and supportable
legitimate, nondiscriminatory reasons for its decision, to
defeat summary judgment the plaintiff must proffer evidence
"from which a fact-finder could reasonably either (1) disbelieve
the employer's articulated legitimate reasons or (2) believe
that an invidious discriminatory reason was more likely than not
a motivating or determinative cause of the employer's action."
Showalter v. Univ. of Pittsburgh Medical Center, 190 F.3d 231,
235 (3d Cir. 1999) (citations omitted); Keller v. Orix Credit
Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc);
Torre, 42 F.3d at 830. In order to discredit the employer's
proffered legitimate reasons for its employment decision, the
plaintiff cannot simply show its decisions were "wrong or
mistaken. . . . Rather the moving plaintiff must demonstrate
such weaknesses or implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered
legitimate reasons for its action that a reasonable fact-finder
could find them unworthy of credence." Fuentes, 32 F.3d at
765, citing Ezold v. Wolf, Block, Schorr and Solis-Cohen,
983 F.2d 509, 523 (3d Cir. 1992).
To show discrimination was more likely than not a cause for
the employer's action, the plaintiff must point to evidence with
sufficient probative force that a fact-finder could conclude, by
a preponderance of the evidence, that discriminatory animus was
a motivating or determinative factor in the employment decision.
Simpson, 142 F.3d at 644-45, citing Keller, 130 F.3d at
1111. "For example, the plaintiff may show that the employer has
previously discriminated against her, that the employer has
discriminated against other persons within the plaintiffs
protected class or within another protected class, or that the
employer has treated more favorably similarly situated persons
not within the protected class." Simpson, 142 F.3d at 645,
citing Fuentes, 32 F.3d at 765.
A prima facie case of discrimination is established where
plaintiff shows he or she (1) is a member of the protected
class, (2) is qualified for the position, (3) suffered an
adverse employment decision, and (4) that an otherwise similarly
situated person outside of the protected class received more
favorable treatment. See Jones v. School Dist. of
Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999); Pivirotto,
191 F.3d at 35557; Simpson, 142 F.3d at 644 n. 5; Ezold, 983
F.2d at 522.
As the Court of Appeals for the Third Circuit explained in
We often have remarked that the elements of a
prima facie case depend on the facts of the
particular case. See, e.g., Pivirotto, [191 F.3d
at 352]; Torre, [42 F.3d at 830]. Thus, a prima
facie case cannot be established on a
one-size-fits-all basis. In fact, the relevant
question with respect to Jones's Title VII and PHRA
claims is whether he suffered some form of "adverse
employment action" sufficient to evoke the
protection of Title VII and the PHRA. See
Connors, [160 F.3d at 974] (stating that third
element of prima facie case in disparate treatment
ADEA case is that plaintiff suffered an adverse
employment action); Deane, 142 F.3d at 142 (same
under ADA); Simpson, [142 F.3d at 644 n. 5];
. . . Obviously, something less than a discharge
could be an adverse employment action.
Jones, 198 F.3d at 411 (certain citations omitted). See also
Torre, 42 F.3d at 830, citing Billet v. CIGNA Corp.,
940 F.2d 812, at 816 n. 3 (3d Cir. 1991) (standards for establishing a
prima facie case are not to be applied inflexibly or rigidly,
but provide a useful framework for analysis which "must be
relaxed in certain circumstances, as when there is a reduction
The prima facie case under the McDonnell Douglas "pretext
framework is not intended to be onerous." Sempier v. Johnson &
Higgins, 45 F.3d 724, 728 (3d Cir. 1995) (citation omitted).
The prima facie case raises an inference of discrimination
because the courts presume that these acts, if otherwise
unexplained, are "more likely than not based on the
consideration of impermissible factors." Id. (citation
omitted). Moreover, the nature of the required showing to
establish a prima facie case of disparate treatment by indirect
evidence "depends on the circumstances of the case." Torre, 42
F.3d at 830 (citations omitted).
The Pregnancy Discrimination Act ("PDA"), a 1978 amendment to
Title VII, states:
The terms `because of sex' or `on the basis of sex'
include, but are not limited to, because of or on the
basis of pregnancy, childbirth, or related medical
conditions; and women affected by pregnancy,
childbirth, or related medical conditions shall be
treated the same for all employment-related purposes
. . . as other persons not so affected but similar in
their ability or inability to work. . . .
42 U.S.C. § 2000e(k).
"There is employment discrimination whenever an employee's
pregnancy is a motivating factor for the employer's
adverse employment decision. 42 U.S.C. § 2000e-2(m)." Carnegie
Center Assoc. v. Rhett, 129 F.3d 290, 294 (3d Cir. 1997). A
claim of pregnancy discrimination presents a special case. Our
court of appeals has held that the requirement that an adverse
employment action occur under circumstances giving rise to an
inference of unlawful discrimination necessitates a certain
modification of the elements of the prima facie case in
considering a claim of pregnancy discrimination. In Geraci v.
Moody-Tottrup, Intern., Inc., 82 F.3d 578, 582 (3d Cir. 1996),
the Court stated:
Pregnancy, of course, is different in that its
obviousness varies, both temporally and as between
different affected individuals. It is difficult to
imagine that an employer would not be aware that an
employee is in the later stages of her pregnancy, at
least if the employer sees the employee. When the
pregnancy is apparent, or where plaintiff alleges
that she has disclosed it to the employer, then a
question of the employer's knowledge would likely
preclude summary judgment. If the pregnancy is not
apparent and the employee has not disclosed it to her
employer, she must allege knowledge and present, as
part of her prima facie case, evidence from which a
rational jury could infer that the employer knew that
she was pregnant. [emphasis added]
May 28, 1998 Demotion Discrimination
Plaintiffs counter statement of facts seriously muddies the
waters in an attempt to create a genuine issue of material fact
as to management's knowledge of her second pregnancy at the time
Kaufmann's demoted her in May 1998, but the record is clear
enough to show the evidence does not support an essential
element of her claim for pregnancy discrimination. By her own
testimony, plaintiff told no one at Kaufmann's until after the
results of her amniocentesis test. Although plaintiff is vague
in her memorandum of law and statements of fact as to the exact
date of her amniocentesis, defendants attach a copy of that
report dated May 4, 1998 to their Reply Brief, Exhibit B. This
report was faxed to plaintiff on that same day.
Plaintiff also states that, at the May 28, 1998, meeting
wherein she was informed she was being demoted from manager of
the fashion studio/fashion photographer to the hourly position
of fashion photographer only, Ms. Joanne Pagnenelli indicated
she knew of Ms. Riding's pregnancy some two weeks before. Ms.
Pagnenelli denies that she stated this. In her complaint,
plaintiff avers that she told Sandra Funk, Ms. Pagnenelli's
secretary, on or about May 14, 1998, and inferentially
therefore, that Ms. Pagnenelli knew on or about that date.
Despite Ms. Pagnanelli's denial, the record supports an
inference that she could have known on or about May 14, 1998,
but there is no evidence of record to show that anyone in
management knew of her pregnancy prior to May 14, 1998. And,
the record affirmatively shows plaintiff told nobody at
Kaufmann's she was pregnant before receiving the results of her
amniocentesis test on May 4, 1998. The Court finds, then, that a
reasonable jury could determine that management knew of
plaintiffs pregnancy on May 14, 1998, but not before.
Ms. Riding herself stated she believed people noticed
"probably in April, like a month before May 28," and it "could
even have been in March," but she also conceded "I don't
know." Exhibit M to Plaintiffs Appendix in Opposition to
Summary Judgment, Riding dep. at 141 (emphasis added).
Plaintiffs evidence, therefore, offers dubious support for the
proposition that her co-workers surmised or suspected she was
pregnant any earlier than May 1998, but even assuming the
record could bear such an inference, plaintiff offers no
evidence whatsoever that anyone in management knew she was
pregnant prior to May 14, 1998, nor could anyone at ...