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August 8, 2002


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 leaving 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 plaintiffs claims.

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. Id.

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).

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 Jones,

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 in force.").

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

Pregnancy 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.

Plaintiff muddies the waters by stating: "Several employees in the Advertising Department were aware that Riding was pregnant even before Riding received the results of her amniocentesis, based on Riding's physical appearance, including weight gain and a change in wardrobe. . . . Coworkers had been asking Riding if she was pregnant as early as March or April of 1998." Plaintiffs counter statement of material facts, ¶ 70. In support, plaintiff cites her own deposition testimony and that of four other co-workers. However, her co-workers do not support this proposition: Ms. Stonemetz said that she believed plaintiff was pregnant in May 1998; Mr. Klein heard "rumors," but did not say when; Ms. Zanotelli says plaintiff told her she was pregnant at some point, but plaintiff did not tell anyone until after the results of her amniocentesis on May 4th; Ms. Funk says only that she noticed "In the spring, some time in the spring," and she couldn't remember if it was early or late spring.

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 ...

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