Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


November 3, 2005.


The opinion of the court was delivered by: A. CAPUTO, District Judge


Presently before the Court is Defendant's Motion For Summary Judgment (Doc. 12). For the reasons set forth below, the Court will grant Defendant's motion in part and deny it in part. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1367.


  Plaintiff, Janet Klimczak, was born on May 25, 1953 in the country of Poland. (Doc. 22-6 at ¶ 3.) Plaintiff speaks English as her second language and has a noticeable accent. (Id. at ¶¶ 2, 7, 13.) In 1996, she was hired by Stacy Malcolm ("Malcolm") as a Sales Associate with Defendant, The Shoe Show of Rocky Mount, Inc. ("Shoe Show"). (Id. at ¶¶ 6, 8.) As a Sales Associate, Plaintiff received an hourly wage plus seven (7) percent commission. (Id. at ¶¶ 32-33.) Plaintiff submitted evidence that during the beginning of her employment under Stacy Malcolm, she had no arguments or confrontations with her co-workers and received commendations. (Id. at ¶¶ 9-22; Doc. 20-15 at 1-5.) The instances addressed in Plaintiff's complaint began when Nicole Sandy ("Sandy") became a key holder and continued in early May of 2002, when Sandy replaced Malcolm as Store Manager. (Id. at ¶¶ 46 (a), (h).) Plaintiff began reporting deficiencies in Sandy's work to the District Manager, Tracy Oross ("Oross"). (Doc.19-2 at ¶ 5.) Plaintiff submitted evidence that Oross warned Sandy on the performance deficiencies Plaintiff had brought to her attention and Sandy then began to retaliate against Plaintiff. (Doc. 19-2 at ¶ 6.)

  On June 5, 2002, Lindsey Kossar, acting Assistant Manager, told the Plaintiff that she had to go and get her lunch. (Doc. 22-6 at ¶ 46 (n).) Plaintiff was having difficulty with her feet that day, and refused. (Id.) On the same day, following the lunch request, Sandy belittled Plaintiff in front of a customer and told her to go home. (Id.) Sandy then blocked her way, but Plaintiff was able to get around her and leave. (Id.) Sandy then followed Plaintiff to her car and would not allow her to go until Plaintiff threatened to call the police. (Id.)

  On June 19, 2002, Plaintiff was seen by T.J. Craparo, M.D., for anxiety and insomnia related to Plaintiff's workplace conflicts. (Doc. 20-16, Ex. J.; Doc. 22-7 at ¶¶ 64-67.) Plaintiff also submitted evidence that on June 24, 2002, she sent a letter to the Pennsylvania Human Relations Commission ("PHRC"). (Doc. 20-10 at 153-54; Doc. 22-7 at ¶¶ 50, 51.) A copy of the letter was sent certified mail to both Jay Manning and Susan Sells. (Id.) According to Plaintiff, the letter specifically stated that she was being discriminated against due to her Polish nationality and because she was over forty (40) years of age. (Id.)

  Plaintiff further submitted evidence that Sandy twice assigned Plaintiff to do tasks Plaintiff felt were managerial duties. (Doc. 20-7 at 106-112; Doc. 22-7 at ¶¶ 46 (aaa)-(ccc).) These tasks included calling an employee to inform her not to come into work, and moving change from one register to another. (Id.) Plaintiff submitted evidence that prior to this, she had only performed what she felt to be Sales Associate duties. (Doc. 22-6 at ¶ 16.) Then, on Labor Day, September 2, 2002, Sandy did not schedule Plaintiff to work that day. (Doc. 20-5 at 75-80.) Plaintiff submitted evidence that she had requested to work, but was told she was not scheduled because the college kids had wanted to work. (Doc. 22-7 at ¶ 46 (rr).) On September 11, 2002, Nicole Sandy was fired. (Doc. 22-1 at 1.)

  A new Store Manager, Alicia Paparella ("Paparella"), was hired from a store specializing in the sale of athletic shoes. (Doc. 22-6 at ¶ 46 (hh).) Plaintiff got along with Paparella at the beginning of her employment, but within two weeks Plaintiff began to have problems with Paparella as well. (Id. at ¶ 46 (z).) On October 18, 2002, Paparella divided the store in half and instructed Plaintiff to work in the half with cheaper priced shoes. (Id. at ¶ 46 (dd).) Paparella then told Plaintiff on October 19, 2002, that she was no longer allowed to sell athletic shoes until Plaintiff underwent training. (Id. at ¶¶ 46 (ee), (ff).) According to Plaintiff, other employees who did not receive training were allowed to sell athletic shoes. (Id. at ¶ 46 (hh).) Plaintiff did not receive training on athletic shoes prior to her termination in November of 2002. (Id. at ¶ 46 (ff); Doc. 14-8, Ex. 5 at ¶ 3.)

  On October 23, 2002, Plaintiff sent a letter to the owner of Shoe Show, Mr. Tucker, describing the problems she was experiencing. (Doc. 20-10 at 156; Doc. 22-7 at ¶ 53.) On October 28, 2002, Paparella assigned Plaintiff to carry and stack boxes. (Doc. 22-7 at ¶ 46 (mm).) Plaintiff and her husband complained to Jay Manning ("Manning"), Defendant's Human Resources Manager, about Paparella's work assignments. (Id. at ¶¶ 46 (nn)-(pp).) On October 31, 2002, Manning called Plaintiff concerning her complaints about being assigned to do boxes and other tasks, and told her that she had to adhere to Paparella's assignments. (Id.)

  Plaintiff further submitted evidence that during the period of June 2002 to November 2002, Sandy and Paparella scheduled Plaintiff to work less than twenty two (22) hours a week although she had previously worked thirty (30) to thirty-two (32) hours per week. (Id. at ¶¶ 46 (tt)-(vv).) Sandy, Paparella and Oross told Plaintiff that her hours were reduced because work was slow and it was necessary to equalize employees' hours. (Doc. 20-6 at 82-87; Doc. 19-1 at vi.) Plaintiff felt that her seniority entitled her to more hours. (Doc. 22-7 at ¶ 46 (vv).)

  On November 2, 2002, Plaintiff sent a second letter to the PHRC to add additional information to her previous complaints. (Doc. 22-1 at 1-2; Doc. 22-7 at ¶ 55.) Then, on November 20, 2002, Manning sent Plaintiff a letter concerning his investigation, following his discussions with Plaintiff, in which he indicated that he was unable to determine any evidence of discrimination on the part of the store manager or anyone else in supervision of Plaintiff's employment. (Doc. 22-1 at 3-4; Doc. 22-7 at ¶ 56.) Manning further indicated that Plaintiff had self-imposed limitations on the hours she was available to work, and he informed Plaintiff that he had found her conduct to be disrespectful and insubordinate at times. (Doc. 22-1 at 3-4.)

  Two days later, on November 22, 2002, Plaintiff was suspended for alleged insubordination. (Doc. 22-7 at ¶¶ 46 (iii)-(qqq).) On that day, Plaintiff was accused of taking a break without signing out, and was reprimanded by Sandra Bonifanti ("Bonifanti"). (Id.) Later that same day, Plaintiff was instructed by Bonifanti to clean the windows during store hours. (Id.) Plaintiff submitted evidence that she informed Bonifanti she would clean the windows after she completed work that Paparella had instructed her to do. (Id.) Bonifanti allegedly screamed at Plaintiff to do the windows while Plaintiff was waiting on a customer. (Id.) Plaintiff further submitted evidence that she did not refuse to clean the windows, but was sent home for insubordination before she could complete the task. (Id.) On or about November 29, 2002, Plaintiff's employment was terminated by Oross after determining Plaintiff had been insubordinate. (Id.)

  After her termination, on December 20, 2002, Plaintiff filed a complaint with the PHRC alleging discrimination based on Plaintiff's national origin and age, as well as retaliation. (Doc. 20-11 at 164.) Then on November 03, 2003, Plaintiff filed her Complaint with the Court. Defendant filed a motion for summary judgement. The motion is fully briefed and the matter is ripe for disposition.


  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). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

  Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

  All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.