The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS
Pending before the Court is Defendant Cracker Barrel Old Country Store, Inc.'s Motion for Summary Judgment (doc. 26)(the "Motion") filed on May 1, 2007.
For the reasons that follow, the Motion shall be granted. PROCEDURAL HISTORY:
Plaintiff Tami Grady ("Plaintiff" or "Grady") commenced the instant action by filing a complaint with this Court on March 16, 2006. (Rec. Doc. 1). The two count complaint asserts claims of sex discrimination, sexual harassment, retaliation and retaliatory harassment in violation of Title VII of the Civil Rights act of 1965, as amended, 42 U.S.C. § 2000(e), et seq. ("Title VII") (Count I) and the Pennsylvania Human Relations Act, as amended, 43 Pa. Cons. Stat. § 951, et seq. ("PHRA")(Count II). On May 16, 2006 Defendant Cracker Barrel Country Store, Inc. ("Defendant" or "Cracker Barrel") filed an answer with affirmative defenses. (Rec. Doc. 7).
Following the close of discovery, the Defendant filed the instant Motion. The Motion has been fully briefed by the parties and is therefore ripe for our review.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED .R. CIV. .P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351,357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).
Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.
Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.
It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).
Still, "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). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Although Plaintiff disputes that they was implemented in an "effective or meaningful way," at all times during Plaintiff's employment, Defendant maintained an Equal Opportunity Policy prohibiting all forms of discrimination, including sex discrimination, as well as a Harassment and Discrimination Policy. (Defendant's Statement of Undisputed Material Facts ("DSF"), ¶¶1,3; Plaintiff's Counter-Statement of Facts ("PCS"), ¶¶1,3). Defendant also maintained an Open Door Policy, which Plaintiff alleges was not implemented in an effective or meaningful way. (DSF, ¶5, PCS, ¶5).
Defendant also maintained an Asset Protection Policy, which provided that using, removing, or consuming any company merchandise without properly paying for it would result in discipline. (DSF, ¶8). Defendant also maintained an Employee Meals Policy which provided that employees were permitted to have one meal at half price for each shift worked, but that all other food or beverages consumed by employees, with the exception of coffee or tea, must be paid for at full menu price. (DSF, ¶¶9-10). Plaintiff disputes the relevancy of these policies because she alleges that she did not consume any food without paying for it and therefore did not violate these policies. (PCS, ¶8, 10).
During Plaintiff's employment, Defendant also maintained a Nonsolicitation Policy which prohibited workers from "solicitation or distribution of written materials or other items during working time in work areas." (DSF, ¶¶11-12).
All of the aforementioned policies are contained in the Cracker Barrel Employee Handbook, which Plaintiff received on her first day of work. (DSF, ¶¶13-14; PCS, ¶¶13-14). To that end, Plaintiff signed an acknowledgment form that she received a copy of the Employee Handbook. (DSF, ¶15, PCS, ¶15). Plaintiff disputes Defendant's contention that she received training relevant to the Defendant's policies and practices on her first day of work. She argues that she received a handbook containing statements that "were not true, were contradictory and misleading in their omissions." (DSF, ¶19, PCS, ¶19).
It is undisputed that Cracker Barrel store managers have the ultimate authority to investigate and resolve claims of sexual harassment. (Plaintiff's Statement of Additional Facts ("PSAF"), ¶15; Defendant's Response to Plaintiff's Statement of Additional Facts ("DR"), ¶15). That manager maintains discretion in how to approach a sexual harassment investigation and may disregard the recommendation of Employee Relations. (PSAF, ¶18; DR, ¶18). Managers are not required to document investigations in any way. (PSAF, ¶24; DR, ¶24).
2. Plaintiff's Employment with Defendant
Defendant hired Plaintiff as a server at its Frackville, Pennsylvania location in January 2003. Plaintiff's job duties included "taking orders, getting drinks, serving the food, giving [customers] boxes and giving [customers] their checks, [and] cleaning." During her employment, Plaintiff officially was a part-time employee but she asserts she often sought extra shifts and typically worked four to seven shifts per week, totaling 25 to 40 hours per week. (DSF, ¶¶16-18; PCS, ¶¶16-18).
At the time Plaintiff became employed by Defendant, Michael Kishbaugh ("Kishbaugh") was the General Manager of the Frackville store. Kishbaugh remained the General Manager of the Frackville Store until September 2003 when he transferred to the Wilkes-Barre, Pennsylvania store. Eric Bartholomew ("Bartholomew") replaced Kishbaugh as the General Manager of the Frackville store in September 2003. At the time Plaintiff became employed by Defendant, Kathleen Fago ("Fago") was the Retail Manager of the Frackville store. Fago remained the Retail Manager of the Frackville store until August 2003 when she transferred to the Wilkes-Barre, Pennsylvania store. (DSF, ¶¶20-24; PCS, ¶¶20-24).
3. Plaintiff's Complaint and Defendant's Investigation
On March 31, 2003, Plaintiff complained to Fago and Associate Manager Kim Shatalsky ("Shatalsky") that Associate Manager David Pavalko ("Pavalko") made her feel uncomfortable at work by, inter alia, looking at her and making comments to her that she felt were inappropriate. (DSF, ¶25; PCS, ¶25). Fago and Shatalsky told Plaintiff to write down her recollections regarding Pavalko's alleged behavior and to write down a list of witnesses who observed the behavior. Fago and Shatalsky told ...