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Angelatos v. US Foods Service

February 23, 2007


The opinion of the court was delivered by: Judge Jones



Pending before this Court is a Motion for Summary Judgment ("the Motion"), filed by Defendant US Foods Service, Inc., Bevaco Division ("Defendant" or "USFS") on April 10, 2006. (Rec. Doc. 25). On December 27, 2006, the United States Magistrate Judge Malachy E. Mannion issued a Report recommending that Defendant's Motion be granted in its entirety. (Rec. Doc. 35). For the reasons that follow, we will adopt the learned Magistrate Judge's Report in part and reject it in part.


On September 15, 2004, Plaintiff Patricia Angelatos ("Plaintiff" or "Angelatos") filed a Complaint in the above-captioned action. (Rec. Doc. 1).

On April 10, 2006, Defendant filed the instant Motion. (Rec. Doc. 25). On December 27, 2006, the Magistrate Judge issued a Report recommending that Defendant's Motion be granted. (Rec. Doc. 35). Plaintiff filed her Objections to Magistrate Judge Mannion's Report on January 11, 2007. (Rec. Doc. 37). Thus, this matter is ripe for disposition.


In his Report and Recommendation ("Report"), Magistrate Judge Mannion summarizes the factual background supporting the instant action based upon his reading of the parties' submissions. Although we agree with the majority of Magistrate Judge Mannion's factual summary, we disagree with a few specific portions thereof. Accordingly, we will outline the facts surrounding this action, as we have found them for our purposes here, viewed in the light most favorable to the non-moving party, Plaintiff.

On March 3, 1997, USFS sent Angelatos a letter offering her employment as a Territory Manager. (Rec. Doc. 28 at 29). In that capacity, Angelatos was to develop a new sales territory in the Pocono Region of Pennsylvania and the northern area of New Jersey. (Rec. Docs. 1, ¶ 11; 15, ¶ 11). The March 3, 1997 letter indicated that Angelatos' sales goal by June 1997 was to achieve sales of "$10,000 per week at 10% gross profit; [and] by September 1997 $17,500 per week . . . at 10% gross profit . . . ." (Rec. Doc. 28 at 29). On or about March 4, 1997, Angelatos signed the March 3, 1997 letter and was hired by USFS. (Rec. Doc. 28 at 29).

Angelatos' duties as a Territory Manager included compiling lists of prospective customers, traveling throughout the assigned territory to call on regular and prospective customers, and servicing customers' accounts, including delivery of items to customers on an as needed basis, which could require lifting and carrying items weighing up to fifty (50) pounds. (Rec. Doc. 35 at 5). From the date of her hire until June 5, 1997, Angelatos acquired twenty-one (21) new accounts for USFS. (Rec. Doc. 35 at 3). Her weekly sales average was $3,093.20, well below the $10,000 sales goal outlined in the offer of employment letter. (Rec. Doc. 35 at 10). However, testimony indicates that the Pocono Region experienced periods of seasonality before the ski season and between the close of the ski season and the summer (doc. 35 at 10), and, indeed, the employment letter USFS sent Angelatos acknowledged as much: USFS "understands the seasonality of your territory and will review your sales goals accordingly [sic] to trending sales numbers"*fn1 (doc. 28 at 29).

On June 5, 1997, Angelatos was injured when she slipped and fell at Mr. Z's Market in Tobyhanna, Pennsylvania.*fn2 (Rec. Doc. 35 at 3). On June 19, 1997, Angelatos received a Notice of Compensation Payable indicating that she was entitled to workers' compensation benefits as a result of her injury. (Rec. Doc. 35 at 6). During her workers' compensation leave, Angelatos was permitted to work from home, with assistance from another USFS employee, Andi Silfin ("Silfin"), assigned to help Angelatos manage her accounts by phone. (Rec. Doc. 35 at 6).

While on workers' compensation leave, Angelatos was evaluated by several doctors retained by USFS' workers' compensation insurance company. On June 19, 1997, Dr. Ricardo Nieves opined that Angelatos' injuries from the June 5, 1997 incident had resolved. (Rec. Doc. 35 at 6). However, on July 7, 1997, following an evaluation of Angelatos by Dr. Mark Scinicio, May Robinson, R.N., prepared a report summarizing Angelatos' records, which concluded that her prognosis was good for full recovery in approximately four (4) weeks and projected that full duty could be resumed on August 11, 1997. (Rec. Doc. 35 at 6-7).

On July 14, 1997, Angelatos wrote her supervisor at USFS, Bill Renfer ("Renfer"), a letter expressing her appreciation for the continued pay despite "only doing about 1/3 of what [she] was doing prior to [her] injury . . . " and indicating that Silfin had been a "great help" and "actually ha[d] been doing most of the work . . . ." (Rec. Doc. 28 at 43). In this letter, Angelatos also expressed concern that she and USFS could lose accounts as a result of her inability to service her accounts in person. (Rec. Doc. 28 at 43). Indeed, she stated:

I just hope we don't start losing the accounts al-together [sic]. For Hickory Valley they want me or another salesperson to show up in person at 4:00 AM every Monday morning for the order. They say that if we can't, they will not deal with us any longer. So if you want to turn this account and Mt. Bethel Diner, Billy's Pocono Diner, and any other account of mine to another salesperson, I will understand. I rather we don't lose the accounts . . . (Rec. Doc. 28 at 44 (emphasis added)).

By July 18, 1997, Angelatos' average sales were $1,770.28 per week, and she had six (6) active customers.*fn3 (Rec. Doc. 35 at 11). In late July 1997, Angelatos' remaining accounts were transferred to Mike Lazo ("Lazo"). (Rec. Doc. 35 at 11). As of July 1997, Lazo was thirty-two (32) years old (doc. 31-3 at 101) and Angelatos was forty-one (41) years old (doc. 1, ¶ 4).

On August 20, 1997, Dr. Scinico issued a Physical Capabilities Check List to USFS indicating potentially conflicting findings regarding Angelatos: he checked a box designating that she had fully recovered and could return to work with no restrictions, but he also commented that he "suggest[s] lumpers*fn4 although objectively able to do regular job." (Rec. Doc. 28 at 57). However, on August 27, 1997, Dr. Scinico provided a Physician's Affidavit of Recovery to USFS indicating that Angelatos had fully recovered and reiterating that she could return to work without limitation on same date. (Rec. Doc. 35 at 7).

Accordingly, on August 27, 1997, the Director of Human Resources for USFS, Allison Davis ("Davis"), sent Angelatos a letter stating that USFS had received Dr. Scinico's Physician's Affidavit of Recovery and that USFS anticipated her return to work on September 2, 1997. (Rec. Doc. 35 at 9-10).

On September 2, 1997, Angelatos apparently reported for work at USFS, but was told that she had been terminated. Davis testified that at the time of termination, Angelatos was told that the reasons therefor were that USFS was in the process of a merger with JP Food Service, and that overlapping territories of the two companies' Territory Managers in the relevant region, as well as the declining sales in Angelatos' territory, had led to the decision to terminate. (Rec. Doc. 35 at 11-12). However, Angelatos disputes Davis' testimony, noting that the Vice President of USFS, Lee Eckert ("Eckert") testified:

Q: In other words, there would be no reason that Pat Angelatos' job was eliminated in September -- on September 2, 1997 because of the impending merger between -- or acquisition of J.P. Food Service and U.S. Food Service/Bevaco Division?

A: Not to my knowledge, no.

Q: Would you have been aware of that if such were the case?

A: I would think. (Rec. Doc. 31-3 at 40). Angelatos also notes (doc. 37 at 4) that in her deposition, Davis contradicted her own testimony as to ...

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