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Lula v. Network Appliance

May 17, 2006


The opinion of the court was delivered by: David Stewart Cercone United States District Judge



Plaintiff, Mary Louise Lula ("Plaintiff" or "Lula") filed a complaint in this action alleging violations of her rights under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, and the Civil Rights Act of 1991 ("Title VII"), 42 U.S.C. §2000e-1, et seq., the Age Discrimination in Employment Act ("ADEA") of 1967, 29 U.S.C. § 621, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. STAT. § 951 et seq. Lula contends that her employment with Defendant, Network Appliance, Inc. ("Defendant" or "NetApp"), was wrongfully terminated based upon her gender and her age.

Following the close of discovery, NetApp filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and in support of its motion filed a memorandum of law and a statement of undisputed material facts. Plaintiff has filed a response to NetApp's statement of undisputed material facts, but failed to file a brief in opposition to the motion for summary judgment.*fn1

NetApp also filed a motion to strike Lula's response and affidavit. Specifically, NetApp contends that Lula's response to the statement of undisputed material facts must be stricken for failure to comply with Local Rule 56.1, that any denial be accompanied by a citation to a specific portion of the record that supports the denial. NetApp argues that Lula's affidavit should also be stricken because it directly contradicts her sworn testimony and purports to attest to facts about which Lula has no personal knowledge.

NetApp further contends that Lula's Response does not comply with the requirements of Local Rule 56.1(C)(1)(c) that she set forth "in separately numbered paragraphs any other material facts that are allegedly at issue and/or that the opposing party asserts are necessary for the court to determine the motion for summary judgment." See LR 56.1(C)(1)(c). Lula, instead, adds statements to her admissions and/or denials of NetApp's statements of fact that, in some instances are unrelated to the specific issue in the statement. In the alternative, NetApp argues that its statements of undisputed material facts should be admitted for Lula's failure to properly deny such statements. Lula failed to respond to NetApp's motion to strike.


NetApp is a high-tech company headquartered in Sunnyvale, California, and is in the business of electronic data storage solutions and content delivery. (Pretrial Stipulation § III, ¶ 2). It employs sales representatives across the United States, Canada and throughout the world. (Pretrial Stipulation § III, ¶ 3).

Lula was born on July 17, 1948, and was a career salesperson based primarily in Pittsburgh, Pennsylvania. (Pretrial Stipulation § III, ¶ 1; Defendant's Statement of Undisputed Material Facts hereinafter "Defendant's SUMF" ¶ 4). Lula, presently fifty-seven (57) years of age, was employed by NetApp as a sales representative from August of 1998 until August of 2001. (Pretrial Stipulation § III, ¶ 4). Lula was NetApp's first sales representative in Pittsburgh, and the only other NetApp employee was John Hurka ("Hurka"), a systems engineer primarily responsible for providing technical assistance both pre- and post-sale. (Lula Dep. pp. 83, 87). Because NetApp did not maintain offices in Pittsburgh, Lula worked out of her home while employed by NetApp. (Lula Dep. p. 84).

From the beginning of her employment with NetApp until May of 2001, Lula's sales territory was part of NetApp's New England District, which was also part of NetApp's Northeastern Area. (Lula Dep. pp. 89-91, 93). Initially, her territory included Pennsylvania, out to Philadelphia, and West Virginia. (Lula Dep. p. 84). Lula was later asked to add upstate New York to her territory. Id. In May of 2001, Lula was reassigned to NetApp's Ohio District, headquartered in Cleveland, and upstate New York was removed from her sales territory. (Lula Dep. pp. 93-95, 100-104). The Ohio District was part of NetApp's Central Area. Id. In the Ohio District, Lula was supervised by District Manager David Sheperd ("Sheperd"). (Lula Dep. 100-101, 104). Sheperd reported to George Bennett ("Bennett"), Vice President of the Central Area. (Bennett Depo. pp. 8, 18-19).

In or around July of 2001, NetApp made the decision to reduce its work force due to declining sales and poor prospects for additional business in the near term. (Bennett Dep. pp. 105-106). Bennett was told to develop a plan to reduce the work force in his area by ten (10%) percent. (Bennett Dep. pp. 18, 107). After a review of the Central Area, Bennett decided that the work force in Pittsburgh was expendable. (Bennett Dep. pp. 18-21). Essentially shutting down Pittsburgh, Bennett believed it made better business sense to affect two (2) people in one city, rather than weakening and disrupting two cities. (Bennett Dep. p. 26). Bennett reviewed his proposed reductions for the entire Central Area with Robert Salmon, NetApp's Vice President, North American Sales, and Salmon gave his approval to Bennett's plan. (Bennett Dep. pp. 107-108; Salmon Dep. pp. 7, 58-60). Bennett did not request input from any of his district managers in identifying positions for elimination. (Bennett Dep. pp. 107-108, 111-112). Sheperd, therefore, had no input into the decision to close Pittsburgh. Id.

On August 14, 2001, Dan Warmenhoven, NetApp's CEO, announced to NetApp's employees worldwide that the company was re-sizing in order to reduce expenses. Defendant's SUMF, ¶ 45). That same day, NetApp's President, Tom Mendoza, announced via on-line broadcast news that the work force was going to be reduced because of decreased revenues. (Lula Dep. pp. 232-235). On August 15, 2001, Sheperd met with Lula and Hurka in Pittsburgh to notify them that their positions with NetApp had been eliminated in connection with the company-wide reduction in force and the closing of the operation in Pittsburgh. (Sheperd Dep. p. 41; Lula Dep. pp. 229-230). During her meeting with Sheperd, Lula was given a letter dated August 14, 2001, referenced "Separation of Employment Due to Reduction-in-Force Layoff." (Lula Dep. p. 251; Exhibit 20). In addition, Sheperd gave Lula a document titled "Questions & Answers" which, among other things, instructed terminated employees regarding consideration for future employment at NetApp, stating: "If you see a position for which you think you are qualified, you are free to submit your resume as an applicant." (Lula Dep. p. 251-252; Exhibit 21).

NetApp retained no Pittsburgh-based employees, and did not fill the positions formerly held by Lula and Hurka. (Lula Dep. p. 256; Bennett Dep. pp. 23-24). Initially, Sheperd planned to cover the Pittsburgh area with representatives out of both Columbus and Cleveland offices, but this did not work out logistically, and the territory was covered exclusively out of the Cleveland office. (Sheperd Dep. pp. 68-69).

NetApp admits that, at the time of the layoffs in the Central Area, it anticipated that it would have to replace Dick Factor, who had recently resigned from his Cleveland based sales position. (Bennett Dep. pp. 221-223). Though Lula indicated that she believed it foolish to allow a person like her, with three years experience with NetApp, to be let go and to then hire a new employee, she admits that she did not submit a resume, cover letter or any other writing to apply for any of the positions she contends were available. (Lula Dep. pp. 259-260, 265). According to Bennett, Lula was not qualified for Dick Factor's position in Cleveland because she did nor reside in the Cleveland area and had no knowledge about the customer base in the Ohio district. (Bennett Dep. pp. 221-223).


Pursuant to FED. R. CIV. P 56(c), summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable ...

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