The opinion of the court was delivered by: Richard P. Conaboy United States District Judge
Here we consider Defendant's Motion for Summary Judgment in which it seeks judgment in its favor on Plaintiff's claims of sex discrimination and retaliation. (Doc. 36.) Plaintiff filed this Title VII action on March 25, 2005, alleging that her employer, Philips Lighting Company, a division of Philips Electronics North America Corporation, discriminated against her on the basis of sex when it failed to hire her for a full-time position while she was a temporary worker at Philips' Mountaintop, Pennsylvania, plant, and that she was not hired for a full-time position and terminated from her warehouse associate position in retaliation for inquiring about full-time status. (Doc. 1.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, we conclude that summary judgment is not proper on Plaintiff's sex discrimination claim and summary judgment is granted on Plaintiff's retaliation claim.
The following facts are derived primarily from Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment, (Doc. 43), unless otherwise noted.
Plaintiff Colleen Donlin ("Plaintiff") began working at Philips' ("Defendant") Mountaintop plant as a temporary worker on or about May 13, 2002, and continued to work at the plant until January 12, 2003, when her assignment was terminated. Plaintiff was assigned to Philips through Adecco Employment Services ("Adecco") - her actual employer during the relevant time period. (Defendant's Brief in Support of its Motion for Summary Judgment, Doc. 40 at 4.) Plaintiff was assigned to Defendant's facility as a warehouse associate, (id. at 6), based on her experience as a forklift operator. She was trained on first shift but worked on third shift where she was the only female temp worker. Her third shift supervisor was Duane Wright. (Doc. 40 at 8.) The plant manager at the time was Brian Glasgow. (Doc. 47 at 6.)
At the time of the assignment, Plaintiff understood "that the length of any assignment provided by Adecco may be reduced without notice." (Doc. 37 ¶ 13; see also Doc. 44 at 1.) Adecco explained to Plaintiff that she was required to work the hours set by Defendant's schedule and that would include overtime and weekends. (Doc. 37 ¶¶ 6, 7; see also Doc. 44 at 1.) Adecco also informed Plaintiff that any consideration for full-time employment would likely not occur for at least ninety days. At some time after the ninety days had passed Plaintiff and co-worker Gerry Medash heard that some full-time hiring was anticipated and asked first-shift "floor leader," Dave Wysocki, about the possibility of being hired. (Doc. 37 App. C at 61-62.) Plaintiff and Medash checked with Wysocki weekly concerning the hiring situation, and, at some point, Wysocki told them to "just hang in there," they would be the next two temps to be hired. (Id. At 64.)
Some time around November 13, 2002, Medash told Plaintiff and Timothy McHenry, another temp, that he had been hired by Philips as a full-time employee. Because they believed they were both better producers than Medash, Plaintiff and McHenry went to speak with Terrance Phelan, the supervisor they were informed had made the hiring decision, to inquire why they had not been hired. Phelan responded that he had been told by management not to hire anyone with a pre-existing injury - particularly Plaintiff and McHenry. At the time, Brian Glasgow was the plant manager. The pre-existing injury Phelan identified for Plaintiff was a reported foot injury, but he did not identify the person who made the report. Phelan also told Plaintiff that she had asked for a couple of Saturdays off and that temps did not have this right. (Doc. 37 App. C at 74.) Plaintiff alleges that Phelan became angry during her conversation with him and, thereafter, her workload was increased.
On November 22, 2002, Phelan assumed the position of plant manager. (Doc. 40 at 8.) About two weeks later, McHenry was hired into a full-time position. In addition to Plaintiff, several male temps were not hired into full-time positions. According to Plaintiff, some of them were told they were not hired because their productivity was not up to standards. (Doc. 37 App. C at 87-88.)
On January 12, 2003, Phelan ordered Adecco to end the assignment of Plaintiff, Philip Vanek and Robert Hummel because of a decrease in volume and a corresponding decrease in the need for temporary workers. (Doc. 37 ¶¶ 35, 53.) Defendant avers that the decision as to which temporary employees to terminate was made by reviewing attendance and performance. (Id. ¶ 36.) Plaintiff maintains that Phelan made all the decisions and she is unaware of the basis used. (Doc. 44 ¶ 36.)
From the time Plaintiff began work at Philips through November 14, 2002, nine male temps were hired as full-time employees but no females that Plaintiff is aware of. (Doc. 44 ¶ 39.) For the year 2002, twelve temporary workers were hired on full-time, one of whom was a female. (Doc. 46 Ex. CD-3.)
The two male employees with whom Plaintiff had questioned when they might be hired full-time - Jerry Medash and Tim McHenry - both had better attendance records than Plaintiff. Medash had a perfect attendance record when he was hired on November 18, 2002. (Doc. 37 ¶ 43; Doc. 44 ¶ 43; Doc. 46 Ex. CD-1.) McHenry had called off sick one day when he was hired on December 23, 2002, and worked all Saturdays he was required to work. (Doc. 37 ¶ 42; Doc. 44 ¶ 42, Doc. 46 Ex. CD-1.) Up until November 18, 2002, (when Medash was hired) Plaintiff was absent one day, reportedly an approved absence when she was either sick or had to appear in court, (Doc. 44 ¶ 23; Doc. 47 at 9 (citing Doc. 37 Ex. 4 at #10))*fn1 , she was two hours late another day due to a migraine headache, (id.), and on October 26, 2002, she requested three Saturdays off - the request for November 23, 2002, received supervisor approval. (Doc. 37 Ex. 5.) Thereafter, Plaintiff had pneumonia from December 4th until December 15th. (Doc. 37 ¶ 23; Doc. 44 ¶ 23.)
In addition to Plaintiff's absences, the record contains the following other incidents: 1) on June 19, 2002, Plaintiff dropped a wooden pallet onto her right foot, (Doc. 37 ¶ 26); 2) on January 10, 2003, Plaintiff cut her index finger while cutting bands from a pallet, (id. ¶ 27); 3) Plaintiff hit a building pole while driving a piece of equipment at the warehouse, (id. ¶ 28); 4) supervisor Duane Wright observed Plaintiff sitting on a pallet talking with another employee during working hours, (id. ¶ 29); and 5) Glasgow observed Plaintiff sitting on product during working hours, (id. ¶ 30). Plaintiff agrees with the first three reported incidents, explaining that the pallet disintegrated in her hand because of defective wood, the finger incident occurred on the day she was terminated and no damage was done when she hit a pole with the forklift. (Doc. 44 ¶¶ 26-28.) As to the incident(s) reported by Wright and Glasgow, Plaintiff adds that at the time she was picking up lamps that had spilled from a pallet. (Doc. 44 ¶¶ 29, 30.)
Other temporary employees were not hired by Philips. (Doc. 37 ¶ 44.) According to Plaintiff, these workers either did not want to be hired or did not have records as good as Plaintiff's. (Doc. 44 ¶ 44.)
Production records are no longer available for temp workers, (Doc. 37 App. A at 24; id. App. C at 7-30.) The only record of production is Plaintiff's own calendar on which she kept track of her individual production. (Doc. 46 Ex. 6.)
With this factual background, Plaintiff believed she was discriminated against based on sex and that she was also the victim of retaliation. She filed a two-count Complaint on March 23, 2005. (Doc. 1.) She charges Sex Discrimination in violation of 42 U.S.C. §§ 2000e-2 et seq (Count I) identifying the discriminatory practices which include: 1) hiring other temporary male workers despite Plaintiff's record of being an excellent worker; 2) hiring other temporary male workers because she allegedly had a disability; 3) hiring other temporary males because she complained about not being hired; 4) hiring other temporary male workers because of retaliation; 5) hiring other temporary male workers because they were preferred over females; and ordering Plaintiff discharged on the basis of sex. (Doc. 1 ¶ 17-18.) Plaintiff also charges retaliation (Count II), alleging that after male temporary workers who were working with Plaintiff were hired to full-time positions, Plaintiff questioned her superiors several times why she was not hired by Defendant and was advised that she would be next hired for a full-time position, but instead was terminated in January 2003. (Doc. 1 ¶¶ 25-32.)
Defendant filed its summary judgment motion on April 7, 2006, (Doc. 36), and its supportive brief on April 20, 2006, (Doc. 40). Plaintiff filed a brief in opposition on May 8, 2006, (Doc. 43), and Defendant filed a reply brief on May 23, 2006, (Doc. 47). Therefore, this matter is fully briefed and is ripe for disposition.
A. Summary Judgment Standard
Summary judgment is proper "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 judgment as a matter of law." See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997)(citing Fed. R. Civ. P. 56(c). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under the law applicable to the case. Id. at 248; Levendos v. Stern Entertainment Inc., 860 F.2d 1227, 1233 (3d Cir. 1988). An issue of material fact is "genuine" if the evidence is such that a reasonable jury might return a verdict for the non-moving party. Anderson, 477 U.S. at 257. In determining whether a genuine issue of fact exists, a court must resolve all factual doubts and draw all reasonable inferences in favor of the nonmoving party. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation omitted).
The initial burden is on the moving party to show an absence of a genuine issue of material fact. The moving party may meet this burden by "pointing out to the district court  that there is an absence of evidence to support the nonmoving party's case when the nonmoving party bears the ultimate burden of proof." Celotex, 477 U.S. at 325. The non-moving party may not rest on the bare allegations contained in his or her pleadings, but is required by Federal Rule of Civil Procedure 56(e) to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When Rule 56(e) shifts the burden of proof to the non- moving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial. Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987).
"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of evidence." Anderson, 477 U.S. at 255. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may be in issue, or when ...