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Maurizio v. Fox Chapel Foods

September 5, 2006


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently before the Court is the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendants Fox Chapel Foods, Inc., t/d/b/a Fox Chapel Community Supermarket, Paul Rosenberg and Howard Rosenberg (Document Nos. 12 and 13), the RESPONSE AND BRIEF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT filed by Plaintiff (Document Nos. 19 and 20), and the REPLY BRIEF filed by Defendants (Document No. 22).

After careful consideration of Defendants' Motion, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Court finds that there is not sufficient record evidence upon which a reasonable jury could return a verdict for Plaintiff, Mary Grace Maurizio ("Plaintiff"), on her claims of gender discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA") and on her claims of retaliation under the Family Medical Leave Act ("FMLA"). Therefore, the Court will grant Defendants' motion for summary judgment as to all federal and state claims which allege gender discrimination under Title VII and the PHRA and as to all claims of retaliation under the FMLA. The Court will also dismiss without prejudice the additional pendent state claims of negligent supervision and intentional infliction of emotional distress alleged by Plaintiff, Mary Grace Maurizio.


Plaintiff brought this lawsuit on August 5, 2004, by filing a seven-count Complaint in which she alleges that her former employer, Defendants Fox Chapel Foods, Inc., t/d/b/a Fox Chapel Community Supermarket, Paul Rosenberg and Howard Rosenberg (collectively referred to as "Defendants") wrongfully terminated her employment and engaged in other acts of gender discrimination in violation of Title VII and that the Defendants wrongfully terminated her employment and engaged in other retaliatory acts because she exercised her rights under the FMLA. Additionally, Plaintiff alleges violations of Pennsylvania state law which include discrimination under the PHRA, negligent supervision, and intentional infliction of emotional distress.

Defendants have filed the instant motion for summary judgment in which they contend that Plaintiff is unable to establish a prima facie case of discrimination under Title VII or retaliation under the FLMA. In the alternative, Defendants contend that assuming arguendo that Plaintiff could state a prima facie case under either Title VII or the FMLA, summary judgment should still be granted in their favor because there is no evidence that Defendants' articulated legitimate, non-discriminatory reason for Plaintiff's discharge (i.e., misconduct) was false and/or that Plaintiff's gender or FMLA leave was the real reason for her termination.


The facts relevant to this discussion, and viewed in the light most favorable to Plaintiff, are as follows. In October of 1996, Plaintiff was hired as a cashier at the Food Gallery store in Fox Chapel, Pennsylvania. All bargaining unit employees of the Food Gallery were represented by United Food & Commercial Workers Union ("UFCW"), Local 23. (Stmt of Undisputed Material Facts, ¶2).

In November 1999, Fox Chapel Foods, Inc., t/d/b/a Fox Chapel Community Supermarket,*fn1 purchased the store and retained all bargaining unit employees, including the Plaintiff, who was employed as a part-time clerk assigned to the produce department. During her entire period of employment with Food Gallery and Fox Chapel Community Supermarket, Plaintiff was a member of the bargaining union represented by UFCW, Local 23. (Id. at ¶ 4.) The terms and conditions of employment for all bargaining unit employees at Fox Chapel Community Supermarket were covered by a Collective Bargaining Agreement ("CBA") between UFCW Local 23 and Fox Chapel Foods, Inc., effective as of February 17, 1998 and terminating February 19, 2005. (Id. at ¶ 6.)

From December 17, 2001 to April 22, 2002, Plaintiff was on FMLA maternity leave. (Id. at ¶ 35.) Within thirty (30) days from February 17, 2002, pursuant to the CBA, Fox Chapel Foods was required to create another full-time position. (Id. at ¶ 36.) Paul Rosenberg elected to place the full-time position in the produce department to make it easier for Plaintiff to qualify for the position as she needed dependent health care coverage for her newborn child. (Id. at ¶ 38). A store employee called Plaintiff and told her about the posting of the full-time position in produce. Plaintiff was awarded the full-time position and upon her return from maternity leave, she received both wage and benefit increases under the CBA.

A few days prior to September 4, 2003, Paul Rosenberg was in the store and saw Plaintiff "leaving" the store fifteen (15) minutes before the end of her shift.*fn2 (Id. at ¶ 8.) He was subsequently told that she had not taken her fifteen (15) minute break. (Id.) Paul Rosenberg did not say anything to Plaintiff or admonish her in any way on that day. (Id. at ¶ 9.)

Later that day when Paul Rosenberg saw General Manager Bill Nau ("Nau"), he told him that at the next managers' meeting, Nau was to tell the managers to schedule all employee breaks in the middle of the work shift. (Id. at ¶ 10.)

Article 9.4 of the CBA provides as follows:

Rest Periods

Employees scheduled to work six (6) or more hours per day, but less than eight (8) hours, shall receive one (1) rest period of twenty (20) minutes. Employees scheduled to work eight (8) hours a day shall receive two (2) fifteen (15) minute rest periods, the first to occur in the morning and the second in the afternoon, or the first in the afternoon and the second in the evening for employees who are working a late schedule. Rest periods will be granted as near to the middle of each work shift as possible. Employees scheduled to work four (4) or more hours per day, but less than six (6) hours, shall receive one (1) fifteen (15) minute rest period.

CBA, Def's Ex. C.

On September 4, 2003, Nau held a store managers meeting at which time he told all managers to schedule all employee breaks in the middle of scheduled work shifts. (Id. at ¶ 11).

Plaintiff came to work on September 4, 2003 at approximately 2 P.M. and shortly after arriving was told by the produce manager of the mid-shift break policy. (Id. at ¶ 13.) Immediately after being told of the policy, Plaintiff went onto the store page system and paged Assistant Store Manager, Renee Sager, and then went to the back room area where Sager and Nau were present. (Id. at ¶ 15.) Plaintiff was clearly upset by the break policy and asked to speak to Paul Rosenberg in private, but her request was denied.

Nau attempted to calm Plaintiff down and explained to her that the break policy applied to all employees, the meeting was not about her, and other topics were discussed at the meeting. (Id. at ¶ 16.) Nau permitted Plaintiff to return to work and did not issue any discipline to her for her conduct. (Id. at ¶ 17.)

Paul Rosenberg later arrived at the store and learned that Plaintiff was upset by the break policy. He went over to her in the produce department and told her that the meeting was not about her. (Id. at ¶18.) As Paul Rosenberg turned to go towards the front of the store, the Plaintiff followed behind him and stated in a loud manner that she was "tired of you (Paul Rosenberg) turning your back on me" and that she was tired of "you (Paul Rosenberg) harassing me (Plaintiff)." (Pl's depo at 28.) This confrontation occurred on the store sales floor where customers were present. (Statement of Undisputed Material Facts, at ¶ 20.)

After the confrontation, Plaintiff asked permission to leave work and go home, which request was granted. No discipline was issued to Plaintiff as a result of the confrontation. Plaintiff "punched out" and waited outside, in front of the store, until her boyfriend came to pick her up.

When her boyfriend arrived, they both re-entered the store and Plaintiff, by her own admission, was in an "upset state." (Pl's depo. at 44.) She again began yelling at Paul Rosenberg and stated:

"a) Don't turn your back on me;

b) You are an evil man; and

c) That the plaques honoring the Rosenberg family were lies and should be taken down."

(Stmt of Undisputed Material Facts, at ¶ 22.)*fn3 Plaintiff was then told to leave the building with her boyfriend, which she did. That evening, Plaintiff was called and told she was being placed on indefinite suspension. (Id. at ¶ 23.)

Plaintiff attended a grievance session on October 2, 2003, held in the rear of the store. She was represented by Union Representative Sue Riley and Store Union Steward Joe Pogel. (Id. at ¶ 24.) During the grievance session, Plaintiff became irritated and again yelled at Paul Rosenberg that he was an evil man and that she did not know what hate was until she met Paul Rosenberg.*fn4 (Id. at ¶ 25.)

Union Representative Sue Riley stopped the meeting due to the conduct of Plaintiff and asked Plaintiff to leave the meeting. (Id. at ¶ 26.) On that same day, Plaintiff's indefinite suspension was converted to a discharge. Subsequently, the grievance filed on behalf of Plaintiff was withdrawn by Local 23.

Plaintiff contends that not only was her employment wrongfully terminated "because of her status as a female, but [she] was also subjected to a hostile working environment while employed by Fox Chapel Foods." Pl's Br. at 8. She also contends that her employment was wrongfully terminated in retaliation for her taking leave under the FMLA and that upon her ...

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