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GAUL v. ZEP MANUFACTURING COMPANY

United States District Court, E.D. Pennsylvania


May 25, 2004.

KAREN LEE GAUL
v.
ZEP MANUFACTURING COMPANY, et al.

The opinion of the court was delivered by: HERBERT HUTTON, District Judge

MEMORANDUM AND ORDER

Presently before the Court are Defendant Acuity Specialty Products Group, Inc.'s d/b/a Zep Manufacturing Company Motion for Summary Judgment (Docket No. 40) and Plaintiff Karen Lee Gaul's response thereto (Docket No. 51).

I. BACKGROUND*fn1

  This suit concerns the alleged discriminatory employment actions against Karen Lee Gaul ("Gaul") by Acuity Specialty Products Group, Inc. d/b/a Zep Manufacturing Company ("Zep") and National Service Industries, Inc. ("NSI").

 A. National Service Industries, Inc.

  NSI is a corporation formed in Delaware and maintains its principal place of business in Georgia. From the start of Gaul's employment with Zep in August of 1994 until 1996, NSI was qualified to do business in Pennsylvania and Zep was a wholly-owned subsidiary of NSI.

  In 1996 NSI was restructured. As part of its corporate restructuring, NSI withdrew as a corporation qualified to do business in Pennsylvania. It transferred all of its interest in Zep to a new subsidiary named National Service Industries, Inc., a company incorporated in Georgia with is principal place of business in Georgia ("NSI-Georgia"). As a result, Zep became a subsidiary of NSI-Georgia which in turn was a wholly owned subsidiary of NSI.

  In August 2001 NSI underwent another corporate restructuring. NSI spun off a number of companies, including Zep, into a new corporation known as Acuity Specialty Products Group, Inc. ("Acuity"). According to NSI, Zep is a wholly owned subsidiary of Acuity since September 1, 2001. Additionally, on November 15, 2001, NSI-Georgia ceased to exist and withdrew is qualification to do business in Pennsylvania.

 B. Gaul's Employment with Zep

  Zep is a manufacturer and supplier of industrial and institutional maintenance and sanitation products. On August 22, 1994, Gaul was hired as a sales representative for Zep's Philadelphia branch under the supervision of Joseph Rotondi ("Rotondi"). Gaul performed well during her first year and received the 1995 "Rookie of the Year" award for having the highest sales of any first-year representative in Zep's mid-Atlantic region. In April 1995 Gaul was given the additional responsibility of working as a Field Coach for other sales representative. In 1996 Gaul was promoted to Accelerated Field Sales Manager, a position which included both sales and management duties.

  Gaul made it to clear to her supervisors that she was interested in advancing to the position of Branch Sales Manager ("BSM"). According to Gaul, at the time of her eligibility to become a BSM, Rotondi repeatedly requested for Gaul to be promoted but those requests were denied by two of Zep's vice-presidents, Bill Buchman ("Buchman") and Alien Soden ("Soden"). In denying her the promotion, Soden allegedly stated that "women attract the wrong kind of candidates and will not make good managers." Joseph Rotondi Aff. ¶ 13 (Docket No. 52, Ex. 3). When Gaul asked Buchman why she was not being promoted, Buchman allegedly said, "When are you going to give up this craziness, and just get barefoot and pregnant?" Karen Gaul Aff. ¶ 58 (Docket No. 52, Ex. 2).

  In June 1998 Gaul was finally promoted to BSM of Zep's Philadelphia branch. As BSM Gaul's responsibilities included (1) hiring, training, retaining and developing new sales representatives; (2) working with and developing veteran sales representatives; (3) working with sales representatives in the field; (4) helping representatives increase their sales; and (5) developing the members of her team into future managers. Based on Gaul's performance as a BSM for fiscal year ("FY") 1999, she received the National Branch Sales Manager of the Year award.*fn2

  In the spring of 1999, Zep had an opening for a District Sales Manager ("DSM") for the mid-Atlantic District, which encompasses the Philadelphia and Washington, D.C. branches. Gaul expressed an interest in the position to Richard Reisig ("Reisig"), the Division Sales Manager for the Northeast Division. Reisig allegedly responded by asking her why she did not stay home and have kids and just be a sales representative without management responsibilities. Reisig interviewed male employees for the DSM position in an office setting. In contrast, he interviewed Gaul in a car while she drove him to New Jersey.

  In July 1999, Ethan Powers ("Powers") was promoted to the DSM position and became Gaul's direct supervisor. According to Powers, Gaul's primary responsibility was to grow the sales revenues of the Philadelphia branch by hiring, training, and developing new sales representatives, and helping veteran representatives grow their business. Gaul was also responsible for the performance of all the sales representatives in Philadelphia, including those who did not report directly to her.

  In December of 2000, Gaul received her performance review for FY 2000. Gaul received a rating of "Exceeds Expectations" for achieving the sales representatives headcount goal, "Meets Expectations" for increasing revenue by 6% for the second six months of the fiscal year, and "Below Expectations" for not meeting the Branch sales revenue goals. Overall, Gaul was rated as "Meets Expectations." As a result, Powers gave Gaul a 3% raise. According to Zep, Gaul's performance weakened in the following months. Specifically, sales revenues for the Branch were below target every month and Gaul was not hiring additional sales representatives nor spending enough time in the field with the representatives. Powers contends that he met with Gaul several times during the spring of 2001 to discuss the Philadelphia branch's lagging revenues and the lack of new sales representative hired. Gaul then allegedly inquired about returning to a sales representative position because she felt it would allow her to spend more time with her terminally ill husband.

  According to Gaul, in the spring of 2001, Powers told her to hold off on hiring new sales representatives until July because of budget concerns. Gaul also disputes that she received any verbal warning about her performance and maintains that Powers in fact assured Gaul that she was doing well. Moreover, Gaul contends that she merely inquired about the possibility of taking on a different job in the event she needed to work fewer hours. Gaul denies that she told Powers she wanted to return to the sales representative position. At the same time, Gaul spoke with James Logan ("Logan"), Direction of Human Resources and Labor Relations, to relate her concerns that Reisig may be treating her differently because she was a woman.

  Gaul was demoted on August 29, 2001 to the position of Field Sales Manager ("FSM"). William Aimis ("Aimis") replaced Gaul in the BSM position. According to Zep, Powers decided to demote Gaul based on (1) her failure to meet the Philadelphia Branch's sales revenue and profitability targets for two consecutive fiscal years and (2) Gaul's failure to fulfill expectations with respect to hiring, retaining, and developing new sales representatives. On August 30, 2001, Gaul received a memorandum from Powers in which he stated that the reason for her demotion was because of the sales results for fiscal year 2001. No other factors were mentioned.

  Gaul believes that the decision to demote her was made jointly by Powers, Reisig, Logan, James Piva, Northeast Division Operations Manager, and Sam Daniels, the most senior sales executive at the time. Gaul notes that while Zep had a policy of warning employees about their poor performance prior to taking an adverse action, Gaul was demoted without warning and without a chance to improve.

  On September 6, 2001, Gaul turned down the FSM position and asked to be reclassified as a sales representative. On September 12, 2001, Gaul received a memorandum from Powers regarding her compensation for the sales representative position. Unlike the initial offer of employment for the FSM position, the memorandum specifically required Gaul to sign a release waiving any claims arising out of her employment with Zep. Gaul refused to sign the release after consulting with her attorney. On September 27, 2001, Gaul received a letter from Logan. The letter stated that if Gaul failed to report to work on October 1, 2001, Zep will take the position that Gaul no longer wished to work for the company. Gaul reported to work on that day but was told to return home after she refused to sign the September 12, 2001 employment agreement.

  From September 2001 to November 2001, Gaul believed she was no longer employed by Zep and was therefore entitled to three months of severance pay according to her 1998 BSM Employment Agreement. She also filed for unemployment compensation. Zep initially maintained that Gaul was not entitled to the severance pay because she was demoted, and not terminated. Zep later revised its position and paid Gaul the three months' severance pay. Additionally, after learning that Gaul filed for unemployment compensation, Logan wrote to the Unemployment Bureau accusing Gaul of fraud. He later stated that he had been "overzealous. " Gaul in turn withdrew her claim for unemployment once she was paid.

  On November 26, 2001, Gaul filed a charge of gender discrimination with the Pennsylvania Human Rights Commission ("PHRC").

  On December 1, 2001, Gaul signed a Sales Representative's Exclusive Account Agreement with Zep and returned to work as a sales representative in the Philadelphia branch on December 10. The Agreement required Gaul to sell $50,000 after six months, $75,000 after nine months, and $100,000 after one year in exchange for receiving a minimum monthly compensation of $6400 for one year. In comparison, other new representatives at Zep were required to sell $28,000 in their first six months. During the next few months, Gaul failed to meet her established sales goals. Gaul alleges that she did not receive any business leads or book of business, even though substantial business was given to male employees who had been demoted. Gaul also alleges that she did not receive any sales support from Aimis, her supervisor. On August 26, 2002, Powers decided to stop paying Gaul her minimum monthly compensation and instead paid her a weekly draw of $275 against her commission, which was subsequently raised to $400 per week. Taken together, Gaul alleges that these actions constitute retaliation for filing her complaint with the PHRC.

 C. Procedural History

  On March 6, 2003, the Equal Employment Opportunity Commission ("EEOC") issued a Notice of Right to Sue letter to Gaul. Gaul filed suit on April 23, 2003. In Counts I and III, Gaul asserts a claim of gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000 (e) et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 951 et seq., respectively. In Count II, Gaul asserts a claim under the Equal Pay Act ("EPA"), 29 U.S.C. § 206. Lastly, in Count IV, Gaul brings a claim for breach of contract.

  On January 30, 2004, this Court issued a Memorandum and Order dismissing Plaintiff's failure to promote claims under Title VII and the PHRA as time-barred and dismissing Plaintiff's failure to promote claim as an EPA violation. See Gaul v. Zep Mfg. Co., No. 03-2439, 2004 WL 234370 (E.D. Pa. Jan. 30, 2004). Zep now moves for summary judgment as to Gaul's remaining claims.

  II. LEGAL STANDARD

  Summary judgment 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." Fed. R. Civ. P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file showing a genuine issue of material fact for trial. See id. at 324. The substantive law determines which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then there is a genuine issue of material fact. See id.

  When deciding a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). Moreover, a court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. See id. Nonetheless, a party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. See Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992).

  III. JURISDICTION OVER NSI

  First, NSI contests this Court's jurisdiction over it.

  A district court may assert jurisdiction over a nonresident defendant, such as the parent corporation, to the extent allowable under the due process clause of the United States Constitution and the law of the state in which the court sits. See Fed.R. Cvi. P. 4(e); International Shoe Co. v. Washington, 326 U.S. 310, 316-17 (1940). Due process requires that the defendant have "minimum contacts" within the forum state such that the exercise of jurisdiction comports with "traditional notions of fair play and substantial justice." Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001) (quoting International Shoe, 326 U.S. at 316).

  The exercise of jurisdiction can satisfy due process on one of two distinct theories, a defendant's general or claim-specific contacts with the forum. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n.8-9 (1984). A defendant is subject to general jurisdiction when it has continuous and systematic contacts with the forum state and exists even if the plaintiff's cause of action arises from the defendant's non-forum related activities. See Helicopteros, 466 U.S. at 414-16; Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Products Co., 75 F.3d 147, 151 n.3 (3d Cir. 1996). Specific jurisdiction is established when a non-resident defendant has "purposefully directed" his activities at a resident of the forum and the injury arises from or is related to those activities. General Electric Company v. Deutz Ag, 270 F.3d 144, 151 (3d Cir. 2001). Questions of specific jurisdiction are properly tied to the particular claims asserted and thus specific jurisdiction frequently depends on physical contacts with the forum. See id. Thus, where the plaintiff has shown that the defendant has the requisite minimum contacts with the forum state and that the exercise of personal jurisdiction would comport with traditional notions of fair play and substantial justice, the constitutional due process standards underlying specific jurisdiction are satisfied. See, e.g., Lautman v. Loewen Group, Inc., No. 99-75, 2000 WL 772818 (E.D. Pa. June 15, 2000).

  A foreign corporation is not subject to a forum state's jurisdiction merely because it owns stock in a subsidiary doing business within the state. See Ames v. Whitman's Chocolates, No. 91-3271, 1991 WL 281798, at *3 (E.D. Pa. Dec. 30, 1991). General jurisdiction does exist when the parent corporation exercises such a degree of control that (1) the subsidiary is its alter ego or agent; (2) the subsidiary is its mere instrumentality; or (3) the corporations function as one integrated enterprise. See id.; Lucas v. Gulf and Western Indus., Inc., 666 F.2d 800 (3d Cir. 1981).

  Here, Gaul seeks to invoke jurisdiction over NSI on the ground that NSI represented itself to be Gaul's employer until November 15, 2001. Gaul notes that (1) NSI was listed as the employer on the W-2 form issued to Gaul from 1994 to 2001; (2) Zep was described as a division of NSI in Gaul's 1998 BSM Employment Agreement; and (3) NSI issued the paychecks to Zep employees until November 2001. Furthermore, Zep was a wholly owned subsidiary of NSI until its spin-off in late 2001. As such, Gaul argues that there is sufficient contact for the Court to assert jurisdiction over NSI. The Court disagrees. Gaul has not presented any evidence that Zep is the alter ego or instrumentality of NSI nor any evidence that the two companies function as one integrated enterprise. Accordingly, the Court concludes that it cannot exercise jurisdiction over NSI.

  Even assuming that this Court can exercise jurisdiction over NSI, the Third Circuit Court of Appeals has held that a parent corporation is not liable for the employment decisions of a wholly owned subsidiary when there is no evidence that the parent and subsidiary are "so interrelated and integrated" to justify piercing the corporate veil. Marzano v. Computer Science Corp., Inc., 91 F.3d 497, 514 (3d Cir. 1996). In Marzano, a female employee brought suit against her former employer and its parent company, alleging employment discrimination. The plaintiff argued that the parent company should be held liable because (1) she was initially hired by the parent and always believed she was employed by the parent; (2) there were no apparent changes in management when the division for which she initially worked merged with another subsidiary; (3) she received paychecks from the parent for some time and belonged to the parent's pension plan; (4) the policy at issue in the suit was based on one promulgated by the parent; and (5) she was regularly involved with the corporate parent while employed at the subsidiary. See Marzano, 91 F.3d at 513-14. The Third Circuit concluded that these facts, "taken together, do not demonstrate that [the subsidiary and its parent] were so interrelated and integrated in their activities, labor relations and management that we should pierce the corporate veil." Id. at 514. The Court dismissed the charges against the parent company.

  Similarly, Gaul has not presented sufficient evidence demonstrating that Zep and NSI were so "interrelated and integrated in their activities." At all times, Gaul was employed by Zep and, beyond receiving paychecks and W-2 forms from NSI, was not regularly involved with NSI. Accordingly, the Court dismisses the charges against NSI. IV. COUNTS I AND III: TITLE VII AND PHRA CLAIMS*fn3

  Plaintiff asserts she was demoted from the BSM position because of her gender. She also asserts a retaliation claim. Each claim will be discussed in turn.

 A. Gender Discrimination

  Title VII prohibits an employer from discriminating against any individual on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). To prevail on a Title VII claim, a plaintiff must present evidence of discrimination using the burden-shifting analysis of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). First, the plaintiff must establish a prima facie case of discrimination. See Burdine, 450 U.S. at 252-53.

  1. Prima Facie Case

  A prima facie case of discrimination under Title VII requires proof that (1) the plaintiff belongs to a protected class; (2) she was qualified for the position she lost; (3) she was subjected to an adverse employment action despite being qualified; and (4) this action occurred under circumstances giving rise to an inference of unlawful discrimination, such as might occur when a similarly situated person not of the protected class is treated more favorably. See Sarullo v. United States Postal Service, 352 F.3d 789, 797 (3d Cir. 2003); Williams-McCoy v. Starz Encore Group, No. 02-5125, 2004 U.S. Dist. LEXIS 2600 at *11 (E.D. Pa. Feb. 5, 2004). The plaintiff's burden to establish a prima facie case is not intended to be "onerous." Simpson v. Kay Jewelers, 142 F.3d 639, 646 (3d Cir. 1998).

  It is uncontested for purposes of this motion that Gaul fulfills prongs one and three the prima facie case. Zep asserts that Gaul cannot establish a prima facie case because she was not qualified for the BSM position and the circumstances of her demotion do not give rise to an inference of unlawful discrimination.

  a. Job Qualification

  Courts rely on an objective standard to determine if a plaintiff is "qualified" for the purposes of a prima facie discrimination claim. See Goosby, 228 F.3d at 320; Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (citing Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990)); Williams-McCov, 2004 WL 356198, at *4. Subjective factors such as leadership or management skills are better left to consideration of whether the employer's nondiscriminatory reason for discharge is pretextual. See Sempier, 45 F.3d at 729.

  Zep maintains that Gaul was not qualified for the position of Branch Sales Manager. Specifically, Zep argues that for FY 2000 and FY 2001, Gaul did not meet her sales revenue and profitability goals nor did she meet her hiring goals. However, the record indicates that Gaul received an award for National BSM of the Year for FY 1999 and that she received an overall rating of "Meets Expectations" during her FY 2000 performance review, with an "Exceeds Expectations" rating for the sales representatives headcount. Further, in the spring of 2001, Powers allegedly told Gaul to hold off on hiring sales representatives until July 2001 because of budgetary concerns and assured her that she was doing "real well." Moreover, Gaul's decision on how much time to spend on the field with her sales representatives reflects upon her management skills. Thus, taking all inferences in favor of the non-movant, the Court finds for the purposes of the prima facie case that Gaul was qualified for the BSM position.

  b. Inference of Unlawful Discrimination

  To establish the fourth element of a prima facie case of discrimination, the Third Circuit has held that a plaintiff need not prove that other employees outside the protected class were treated more favorably. See Pivirotto v. Innovative Sys. Inc., 191 F.3d 344, 353 (3d Cir. 1999). Rather, the plaintiff must offer "evidence adequate to create an inference" of unlawful discrimination in employment. Id. at 355.

  Here, Gaul contends that she was treated less favorably than Stuart Chaires ("Chaires"), the BSM of Washington, D.C., and William Aimis, Gaul's replacement. Chaires was hired by Powers in February 2000. At the time of her demotion, Chaires had never met his sales revenue and profitability goals nor his hiring goals. However, despite his comparatively weaker performance, Chaires was not demoted in the fall of 2001. Further, for the first two years since Aimis replaced Gaul, Aimis did not meet his sales revenue and profitability goals either. Although proof of differential treatment of "a single member of the non-protected class is insufficient to give rise to an inference of discrimination" at the pretext stage, "such an inference may be acceptable at the prima facie stage of the analysis." Simpson, 142 F.3d at 646. Thus, the Court concludes that Gaul has presented sufficient evidence to create an inference of unlawful discrimination. Accordingly, Gaul has established a prima facie case of gender discrimination.

  2. Defendant's Legitimate Non-Discriminatory Rationale

  If the plaintiff can establish a prima facie case of discrimination, the burden of production shifts to the defendant to articulate some legitimate nondiscriminatory reason for the adverse employment action. See Burdine, 450 U.S. at 253 (quoting McDonnell-Douglas). Here, Zep's articulated nondiscriminatory reason for demoting Gaul is her poor performance as a BSM.

  3. Pretext

  Because the defendant has met its burden of production under the McDonnell-Douglas framework, the plaintiff must establish that the legitimate reasons offered by the defendant were merely pretext for gender discrimination, and not the real motivation behind the unfavorable job action. See id. To do this, the plaintiff must submit evidence sufficient for a factfinder to "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." Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)). To establish pretext under the first approach, a plaintiff must demonstrate such "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Fuentes, 32 F.3d at 765.

  Viewing the facts in the light most favorable to the plaintiff, Gaul has raised sufficient issues of material fact to defeat Zep's summary judgment motion. First, at the time of her demotion, Gaul was the only female BSM at Zep and she was demoted while Chaires, a less successful male BSM, was not demoted. Next, while Zep typically provided other BSMs with written warnings regarding their performance, Gaul received no written warning about her performance nor was she given a chance to improve her performance. Moreover, Gaul disputes Zep's contention that she received several verbal warnings about her performance as BSM. Finally, Gaul contends the decision to demote her was made by Powers and other members of Zep's management, including Reisig, who had originally questioned Gaul's ambition and who allegedly did not properly recognize Gaul's contributions. Taken together, Gaul has raised sufficient questions such that a reasonable factfinder could disbelieve Zep's articulated legitimate reason. Accordingly, summary judgment is denied as to Gaul's Title VII gender discrimination claim.

 B. Retaliation

  Title VII also prohibits retaliation against employees who engage in a protected activity such as stating a claim of discrimination. See 42 U.S.C. § 2000e-3(a); Durham Life Ins. Co. v. Evans, 166 F.3d 139, 157 (3d Cir. 1999). Where, as here, the plaintiff relies on indirect evidence of discrimination, the burden-shifting analysis of McDonnell-Douglas applies. See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997); Hartman v. Sterling, Inc., No. 01-2630, 2003 WL 22358548, at *8 (E.D. Pa. Sept. 10, 2003). To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that (1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her after or contemporaneous with the protected activity; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action. See Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001).

  Informal protests of discriminatory employment practices, including making complaints to management, qualify as protected activity under Title VII. See Hartman, 2003 WL 22358548, at *8. Thus Gaul first engaged in protected activity when she alerted Logan in May of 2001 that she believed Reisig "ha[d] a problem with [her] because [she] was a woman." Karen Gaul Dep. at 379 (Docket No. 52, Ex. 4).

  Retaliatory conduct constitutes "adverse employment action" if it "alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his [or her] status as an employee." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997). The Third Circuit has also emphasized that courts should not analyze the employer's individual acts in isolation, but rather should examine the acts collectively in determining whether an adverse employment action occurred. See Shaner v. Synthes (USA), 204 F.3d 494, 503 n.9 (3d Cir. 2000). Here, Gaul has raised a genuine issue of fact that adverse actions were taken against her after or contemporaneously with the protected activity. After her demotion but before she returned to Zep in December 2001, Gaul points out that the initial demotion to the FSM position came with no strings attached while the subsequent offer for the sales representative position required her to sign a release. Gaul was told that she was not entitled to severance pay and was accused of engaging in fraud with the Pennsylvania Unemployment Bureau. Gaul also notes that after reporting to work on October 1, 2001, as directed by Logan, she was then told to go home. After Gaul started working as a sales representative, Gaul alleges that she was given unrealistic sales goals. Specifically, she was required to sell $50,000 of Zep products after six months whereas other new sales representatives were required to sell only $28,000. Gaul also alleges that she failed to receive any sales support from Aimis. Finally, Gaul alleges that she was not given business leads until December 2002, even after consistently asking for them and even though substantial business was given to male employees who had been demoted. Viewing all the actions cited by Gaul collectively and drawing all inferences in her favor, the Court finds that sufficient evidence exists to establish a genuine issue of adverse employment action.

  Third Circuit cases focus primarily on timing and evidence of ongoing antagonism in finding the requisite causal link for a retaliation claim. See Abramson v. William Patterson College of New Jersey, 250 F.3d 265, 288 (3d Cir. 2001); Hartman, 2003 WL 22358548, at *10. Unless the temporal proximity is "unusually suggestive," timing alone is insufficient to establish the necessary connection. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000). In such instances, timing plus any circumstantial evidence, including a "pattern of antagonism" following the protected conduct, that supports the inference can be used to substantiate a causal connection. See id. at 280-81. While the timing aspects in Gaul's case is not "unusually suggestive," Gaul need only show at this stage that there exists a genuine issue of material fact. Drawing all inferences in her favor, the Court finds that the allegations here are sufficient to establish a causal connection.

  Zep has proffered legitimate non-discriminatory reasons only for its actions after Gaul returned to Zep as a sales representative. In particular, Zep states that (1) the sales goals were established in light of Gaul's previous experiences at Zep; (2) Aimis had e-mailed Gaul asking if she needed help; and (3) Aimis and Powers decided not to give any business to Gaul until her performance as a sales representative had improved. Zep has failed to articulate any legitimate reasons for the remaining adverse employment actions described above.

  Even assuming that Zep has fully met its burden, Gaul has met her rebuttal burden of proving by a preponderance of evdience that "the legitimate reasons offered by the defendant were . . . a pretext for [retaliation]." Burdine, 450 U.S. at 253, 254 n.7. As long as plaintiff produces sufficient evidence of pretext, she need not produce additional evidence of retaliatory discrimination beyond her prima facie case to proceed to trial. See Sempier, 45 F.3d at 731. Factors such as the defendant's credibility, the timing of an employee's dismissal and the employer's treatment of the employee can raise an inference of pretext which would render summary judgment for the employer inappropriate. See Josey v. Hollingsworth Corp., 966 F.2d 632, 638-39 (3d Cir. 1993); Hartman, 2003 WL 22358548, at *11. Here, Gaul points out that while Zep argues she was not given business leads because of her performance, the business was then given to new sales representatives. Gaul also notes that, beyond the e-mails Aimis sent her, Aimis had never met with her to discuss her sales responsibilities nor responded to any of her e-mails asking for help. In sum, Gaul has raised sufficient issues of material fact that could lead a reasonable factfinder to conclude that she was subjected to retaliatory actions. Accordingly Zep's summary judgment motion as to Gaul's Title VII retaliation claim is denied.

  V. COUNT II: EQUAL PAY ACT

  The fundamental purpose of the Equal Pay Act ("EPA"), 29 U.S.C. § 206 et seq., is to remedy disparities in pay arising from traditional concepts of gender. See Corning Blass Works v. Brennan, 417 U.S. 188, 195 (1974). Under the EPA, an employer is proscribed from discriminating, on the basis of gender, by paying lower wages to employees of one gender than those paid to employees of the other gender who are performing equal work on jobs that require equal skill and responsibility. See 29 U.S.C. § 206(d)(1).*fn4 Courts "look beyond the job title to determine whether the jobs are substantially equal." Ryan v. General Mach. Prods., 277 F. Supp.2d 585, 597 (E.D. Pa. 2003) (quoting Brobst v. Columbus Servs. Int'l, 761 F.2d 148, 151 (3d Cir. 1985)).

  Claims based upon the EPA follow a two-step burden-shifting paradigm. See Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000). First, the plaintiff must establish a prima facie case by demonstrating that employees of the opposite sex were paid differently for performing "equal work," which is work of substantially equal skill, effort and responsibility, under similar working conditions. Id. at 107. The plaintiff need only establish that she was paid differentially because of her gender with respect to a single male employee. See Ryan, 277 F. Supp.2d at 596. If the plaintiff meets her initial burden, the burden of persuasion then shifts to the employer to demonstrate the applicability of one of four affirmative defenses available under the EPA: (1) a bona fide seniority system; (2) a merit system; (3) a system which measures earnings by quantity of quality of production; or (4) a differential based on any factor other than sex. See Stanziale, 200 F.3d at 107 n.6; 29 U.S.C. § 206(d)(1). Because the employer bears the burden of proof at trial, in order to prevail at the summary judgment stage, the employer must prove at least one affirmative defense "so clearly that no rational jury could find to the contrary." Ryan, 277 F. Supp.2d at 596 (quoting EEOC v. Delaware Dep't of Health and Soc. Servs., 865 F.2d 1409, 1414 (3d Cir. 1989)). Not only must the employer submit evidence from which a reasonable factfinder could conclude that the employer's proffered reasons could explain the wage disparity, but the employer must produce sufficient evidence from which a reasonable factfinder could conclude that the proffered reasons actually motivated the wage disparity. See Stanziale, 200 F.3d at 108-9.

  Here, Gaul's EPA claims are based on the earnings of a male BSM in Zep's New Jersey branch, John Richter, over a period of years. Gaul was promoted to the BSM position six months after Richter became BSM of the New Jersey branch. The parties do not dispute that both Richter and Gaul performed substantially similar work as BSMs. For FY 1999 through FY 2001, the record indicates that Gaul's base salary was consistently lower than Richter's. Gaul has thus satisfied her prima facie burden by showing that she was paid less than an employee of the opposite sex for substantially similar work. Because Zep has not addressed any of the four affirmative defenses in response to Gaul's EPA claim, summary judgment is denied as to this count.

  VI. COUNT IV: BREACH OF CONTRACT

  Under Pennsylvania law, to make out a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of a contract, including its essential terms; (2) a breach of the duty imposed by the contract; and (3) damages resulting from the breach. See Halstead v. Motorcycle Safety Found. Inc., 71 F. Supp.2d 455, 458 (E.D. Pa. 1999); Corestates Bank v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). The Court must determine, as a matter of law, whether the relevant contract terms are ambiguous. See 12th St. Gym v. Gen. Star. Indem. Co., 93 F.3d 1158, 1165 (3d Cir. 1996). If the contract is unambiguous, then it is for the Court to decide whether the contract was breached. See St. Paul Fire & Marine Ins. Co. v. Lewis, 935 F.2d 1428, 1431 (3d Cir. 1991); Mellon Bank, N.A. v. Aetna Bus. Credit, 619 F.2d 1001, 1011 n.10 (3d Cir. 1980); Engers v. Perini Corp., No. 92-1982, 1993 WL 235911, at *3 (E.D. Pa. June 28, 1993).

  In Count IV Gaul asserts that Zep failed to comply with the 1998 BSM Employment Agreement, entitling her to three months of severance payment in the event that she was terminated. Zep argues that Gaul cannot make out an actionable breach of contract claim because she has no damages and therefore cannot satisfy the third element of her claim. When Gaul was demoted in August 2001, Zep initially took the position that she was not entitled to severance payments because she was not terminated from employment with Zep. However, Zep subsequently revised its position and paid Gaul her full BSM base salary for the three-month period from September to November 2001. Even assuming that Zep did breach the 1998 BSM Agreement, it is undisputed that Gaul has now been paid the three month severance to which she claims she is entitled. Gaul has not put forth any further evidence of her damages, beyond conclusory statements that she was harmed by Zep's treatment of her during the three month period following her demotion. Accordingly, summary judgment is entered in favor of Defendants as to this claim.

  VII. CONCLUSION

  For the reasons stated, Defendant Zep's motion for summary judgment is granted as to Count IV and denied as to Counts I, II, and III. Additionally, Defendant National Service Industries, Inc. is dismissed as a party to this action.

  An appropriate Order follows.

  ORDER

  AND NOW, this ____ day of May, 2004, upon consideration of Defendant Acuity Specialty Products Group, Inc. d/b/a Zep Manufacturing Company's Motion for Summary Judgment (Docket No. 40), Plaintiff Karen Lee Gaul's response thereto (Docket No. 51), and for the reasons set forth in the accompanying Memorandum, IT IS HEREBY ORDERED that Defendant's Motion is GRANTED IN PART and DENIED IN PART as follows:

  (1) Defendant's Motion for Summary Judgment is GRANTED as to Count IV; and

  (2) Defendant's Motion for Summary Judgment is DENIED as to Counts I, II, and III.

  IT IS FURTHER ORDERED that all claims against Defendant National Service Industries, Inc., are dismissed.


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