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Macon v. Kings Family Restaurant

May 7, 2007


The opinion of the court was delivered by: Ambrose, Chief District Judge.



Pending is Defendant's, King's Family Restaurant's, Motion for Summary Judgment relating to Plaintiff's claims of age and gender discrimination. (Docket No. 21). Plaintiff responded thereto. Based on my Opinion set forth below, said Motion is denied.


Plaintiff, James Macon, began working for Defendant, King's Family Restaurant, on September 19, 1979, as a bus boy. After holding several positions, Plaintiff was eventually promoted to General Manager. At all times relevant and material hereto, Plaintiff was the General Manager of the Moon Township store, Donald Trischler was Macon's District Manager, Anne Cashman was the Assistant General Manager, and Bridget Weaver was the Assistant Manager. Ms. Cashman and Ms. Weaver reported to Plaintiff.

The General Manager is considered to be the highest ranking position at a particular King's location. It is the General Manager's responsibility to be in control of the store. The General Manager is responsible for the scheduling of managers and disciplining employees. The General Manager reports to the District Manager, who oversees several King's locations in the district.

On November 14, 2004, Ms. Weaver was opening the store between 5:30 and 6:00 a.m. She climbed on a step ladder to turn on the "open" sign. While on the ladder, Ms. Weaver slipped and fell.

Defendant maintains an employee handbook which contains policies and procedures. Defendant has a policy regarding accidents that occur at work. If an accident occurred at one of Defendant's stores, the manager on duty was required to fill out an accident report and administer a drug test. Defendant requires that an accident form be filled out when an injury or the possibility of an injury occurs. The accident form states that it must be completed by the manager on duty before the end of the day. Mr. Trischler stated that the purpose of the drug test in conjunction with an accident was to ascertain whether the cause of the accident was drug related. If it was drug related, Defendant may not be liable for workers compensation.

Ms. Weaver did not fill out an accident report or take a drug test that day. After Ms. Weaver advised Plaintiff of her intention not to file a report, Plaintiff advised Ms. Weaver that it was good she was not filling out an accident report because the safety bonus was the only bonus the store would probably receive.*fn2 Plaintiff never directed Ms. Weaver to fill out the accident report or to take the drug test.

Plaintiff and Ms. Weaver worked together again a few days after the accident. Ms. Weaver approached him again about the accident and said her back was not getting any better and that she wanted to fill out an accident report. Plaintiff admits that he told Ms. Weaver "That's your decision. You got to make it. You made the decision not to fill it out when this happened, and I think with this new drug policy which has only been in effect for seven or eight months they are not going to be happy about that. You made the decision not to fill it out, and now three days later you're in so much pain you need to fill it out. That's your decision, you got to make's your decision, I think they could even fire you." Ms. Weaver asked Plaintiff to sign the accident form and the drug test, which Plaintiff did.

Ms. Weaver contacted Defendant's human resources department and safety department regarding the accident. At the time of the incident, James Covelli was the Employment Manager for Defendant and Pish was the Director of Human Resources. The Employment Manager's responsibilities include investigations regarding employees. The implementation of the drug testing policy as part of the accident investigating protocol was largely due to Mr. Covelli's initiative.

The handbook also sets forth certain violations for which an employee may be immediately terminated. One of those violations is for coercing or intimidating another employee.

Mr. Trischler first became aware of Ms. Weaver's accident when Mr. Pish contacted him. Mr. Pish told Mr. Trischler that Ms. Weaver had fallen off a ladder and had wanted to fill out an accident report, but was told that she should not fill out the accident report. Mr. Pish directed Mr. Trischler to investigate Ms. Weaver's claims. Mr. Trischler requested that Mr. Covelli participate in the investigation and the two of them took written statements from Ms. Cashman and Ms. Weaver. Mr. Trischler also testified that he thought a third written statement might have been obtained from Patter Harpster.

Ms. Cashman stated that she found out about Ms. Weaver's accident on Tuesday, November 16, two days after it occurred. It was Cashman's first day back to work after a vacation. She was informed by another employee that ...

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