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Zippittelli v. J.C. Penney Co.

February 28, 2007

JOANNE ZIPPITTELLI, PLAINTIFF
v.
J.C. PENNEY COMPANY, INC., J.C. PENNEY TELEMARKETING, INC., AND JAMES JOHNSON, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

MEMORANDUM

Before the court is defendants' motion for summary judgment (Doc. 18). Having been fully briefed and argued, the matter is ripe for disposition.

I. Background

The plaintiff, who is 66 years old, brought this employment discrimination suit against her employer, J.C. Penney, after the company failed to promote her to the position of shift operations manager at the company's Moosic, Pennsylvania Customer Service Center. (See Complaint (Doc. 1)). She alleged violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq., retaliation claims under both acts, and the same claims under the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. She brought these claims against both the company and the PHRA claims against her supervisor at the Moosic center, James Johnson.

Plaintiff sought relief in the form of appointment to the position she was denied, back pay, costs and attorney's fees, front pay, and punitive and liquidated damages.

Plaintiff was hired by J.C. Penney on July 18, 1988. (Defendant's Statement of Material Facts (hereinafter "Defendant's Statement of Facts") (Doc. 19) at ¶ 1)*fn1 .

She was the first associate hired at the new Customer Service Center in Moosic. James Johnson became personnel manager at the facility in March 1990. (Defendant's Statement of Facts at ¶ 5). Johnson was promoted to manager of the call center in March 1999 (Id. at ¶).*fn2 After Johnson came to the facility, plaintiff frequently sought promotion to a management position. In 1990, she sought promotion to seasonal shift leader, also known as general lead clerk. (Plaintiff's Deposition, Attached as Exhibit A to Plaintiff Brief in Opposition to Defendant's Motion for Summary Judgment (Doc. 27) (hereinafter "Plaintiff's Deposition") at 46). The company denied her the position, giving it instead to Mike Martino. (Id. at 47). Plaintiff felt that she had been passed over for the promotion because of her sex. (Id. at 48). Feeling that complaining about this discrimination would be "useless" and harmful to her prospects of future promotion, plaintiff did not file any formal complaints about this hiring decision. (Id. at 55). Plaintiff was denied a similar promotion in 1991; she did not make a formal complaint of gender discrimination, but did tell a regional manager that she felt the promotion was awarded to a man on the basis of gender and office politics. (Id. at 57-58). Defendants denied plaintiff promotion in 1992, giving the position to another woman. (Id. at 61). She believed she failed to get this promotion because she worked in personnel, and because she had complained to a manager about "harassment" at her job. (Id. at 64-5). Managers, she told the supervisor, held her to higher performance standards than they did others in the same position, both men and women. (Id. at 65). She did not claim that this harassment was on the basis of her sex or age. (Id. at 67-68). This pattern continued until 1997, when the company promoted plaintiff to general lead clerk. (Id. at 71-72). James Johnson asked plaintiff if she planned to apply for the position, suggesting she do so. (Id. at 72-3).

Plaintiff contends that after she complained in 1993 or 1994 to a supervisor about her lack of opportunity for promotion, Johnson told two of her co-workers that plaintiff would "never be promoted while he was there." (Id. at 98). Plaintiff made no complaint about this comment. (Id. at 101). Matthew Cavanaugh, who worked as a Shift Operations Manager for more than fourteen years for defendants until he was fired in 2002, testified in an affidavit that Defendant Johnson had made a remark at a management meeting that plaintiff and a co-worker would "never be promoted to management." (Affidavit of Matthew Cavanaugh, Plaintiff's Exhibit E to Brief in Opposition to Motion for Summary Judgment (Doc. 27) at ¶¶ 32, 38). Cavanaugh did not describe when the meeting took place or why Johnson declared that he would not promote the plaintiff. Johnson also declared, Cavanaugh claims, that "[a] woman's place is in the home." (Id. at ¶ 7).

The promotion decision about which plaintiff complains came in 2004. In the summer of that year, plaintiff applied for the shift operations manager job after Johnson informed her it had become available. (Plaintiff's Deposition at 116). At the time, she was working as a general lead clerk in the Call Service Center. (Id.). She was one of four women--all of whom had the same job title at the time--who applied for that job. (Id.). The candidates submitted resumés, and underwent telephone interviews with a recruiter from J.C. Penney's corporate office in Dallas, Texas. (Affidavit of James Johnson, attached as an exhibit to defendant's statement of material facts (Doc. 19) (hereinafter "Johnson Affidavit") at ¶ 13). These telephone interviews had not previously been part of the promotion process at the company. (Plaintiff's Deposition at 116). Johnson then interviewed the candidates, determining that three of the candidates, including the plaintiff, were qualified for the position. Plaintiff concluded during the interview that she would get the position, believing that Johnson had already decided which candidate to hire. (Id.). Johnson then ranked the three candidates, making plaintiff his third choice. (Johnson affidavit at ¶ 13). Patti Cruikshank was Johnson's first choice, and after he consulted with his supervisor, J.C. Penney hired Cruikshank as shift operations manager. (Id.).

Plaintiff blamed her age for her lack of success in seeking the promotion and told her supervisor, Anita Applegate Benko, of this suspicion. (Plaintiff's Deposition at 105). This supervisor asked her how old she was. (Id.). When Benko found out she was 63, she said she would "probably not" get the position. (Id.). Plaintiff made no formal complaint of age discrimination immediately after hearing this comment. (Id. at 106). She did file a complaint of age discrimination with the Equal Employment Opportunity Commission in 2004, however. (Id. at 199). She received a right to sue letter from the EEOC in 2005. (Id. at 206). After plaintiff filed her lawsuit, she participated in a deposition. In that deposition, plaintiff contended that defendants did not promote her in 2004 because of her age. (Id. at 120). She admitted, however, that she did not think she had been denied the promotion because of her sex. (Id.).*fn3

II. Jurisdiction

As this case is brought pursuant the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.,and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq.,we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We also have pendant jurisdiction of plaintiff's claims under the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq.

III. Legal Standard

Granting 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) (emphasis in original).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

IV. Discussion

Defendant moves for summary judgment on several grounds. We will address each in turn. As a preliminary matter, we note that we apply the same legal standards to claims brought under the Pennsylvania Human Relations Act as we do to claims brought under federal anti-discrimination laws that address the same subject matter. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (finding that "While the Pennsylvania courts are not bound in their interpretations of Pennsylvania law by federal interpretations of parallel provisions in Title VII, the ADA, or the ADEA [citations omitted], its courts nevertheless generally interpret the PHRA in accord with its federal counterparts."). ...


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