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Gaetano v. Bayer

November 8, 2007


The opinion of the court was delivered by: Judge Nora Barry Fischer



This is an action in employment discrimination. Plaintiff Joyce Gaetano claims that Defendant Bayer, Inc., for whom she worked from 1979 until 2002, discriminated against her based upon her sex and retaliated against her in violation of Title VII, 42 U.S.C. §2000e-1 et. seq., and the Pennsylvania Human Relations Act, 43 P.S. § 951 et. seq. (PHRA). Additionally, Plaintiff alleges a breach of contract claim against Defendant, stemming from Defendant's alleged failure to comply with a settlement agreement these parties reached in a prior sex discrimination lawsuit brought by Plaintiff, Gaetano v. Bayer, at Civil Action No. 98-917 (Gaetano I), and a claim for fraudulent concealment which stems from the Gaetano I settlement negotiations. Plaintiff seeks compensatory damages, punitive damages, consequential damages and attorneys' fees.

Pending before this Court is Defendant's omnibus motion for summary judgment. [DE 54]. After careful consideration and for the reasons that follow, Defendant's motion is granted in part and denied in part.


Jurisdiction in this Court is based upon Plaintiff's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. Jurisdiction over the Plaintiff's PHRA claims, breach of contract claim and fraudulent concealment claim is provided by the supplemental jurisdiction statute, 42 U.S.C. § 1367. Venue is appropriate in this Court because the events giving rise to Plaintiff's claims all occurred within this judicial district. 28 U.S.C. § 1391(b).


The Court has gleaned the following factual background from the parties' summary judgment filings.

Plaintiff, a chemical engineer, began working for Defendant in 1979. [DE 39 at ¶¶ 6, 7; 65 at ¶ 2]. In May of 1998, Plaintiff filed Gaetano I wherein Plaintiff claimed that she had been discriminated against based upon her sex alleging, inter alia, that she was not promoted at the same pace as similarly situated males. [DE 65 at 6]. During the course of the litigation, on July 1, 2000, Defendant promoted Plaintiff to the position of Business Manager, Froth CPS Foams ("Froth Foams position") an E-1 level management position. [DE 65 at 18]. The parties settled Gaetano I on March 9, 2001. [DE 63-19]. The terms of the Gaetano I settlement agreement obligated Defendant to promote Plaintiff to a first level management position (E-1), which Defendant had already done on July 1, 2000, and prohibited Defendant from retaliation against Plaintiff for bringing the Gaetano I lawsuit. [DE 63-19]. As part of the settlement agreement, Defendant also agreed to remove disparaging materials from Plaintiff's personnel file:

Bayer has agreed to remove from Gaetano's personnel file and to destroy 4 letters dated December 11, 1995, February 8, 1996, February 13, 1996 and February 13, 1996, an undated and unsigned note given to Mr. Harrick from Mr. Kirk and a handwritten note prepared by Mr. Harrick dated June 20, 1995 ("Subject J. Gaetano Let's Talk") both of which contain unfavorable remarks about Gaetano, and any rebuttal prepared by Gaetano to any of the specified documents. [DE 63-19 at ¶ 5].

In her Froth Foams position, Plaintiff reported to Robert Daniele, Vice President of the Specialty Business Group. [DE 65 at ¶ 20]. In January of 2001, as part of a corporate wide effort to reduce the workforce, Mr. Daniele worked with Defendant's HR Director, Ann Hoover, to create a combined position in his group entitled Director, Specialty Foams, which would be the result of a consolidation of three positions, including Plaintiff's Froth Foams position. [DE 63-12; 65 at ¶ 24]. In fact, on January 23, 2001, Mr. Daniele sent an email to Ann Hoover describing the revised qualifications necessary for the new, combined position. [DE 63-12]. In April of 2001, approximately one month after the parties finalized the Gaetano I settlement agreement, Mr. Daniele effectuated the consolidation and creation of the new position. [DE 62 at 4; 63-6 at 22 of 43; 65 at ¶24]. The two other positions which were consolidated were Manager of Microcellular Foam, held by Jyothi Pisipati, and Manager of Flexible Molded/Specialty Foam held by Jim Jasenek. [DE 65 at ¶25]. The combined position was awarded to Jim Thompson and the positions previously held by Plaintiff, Mr. Jasenek and Ms. Pisipati were all eliminated. [DE 65 at ¶¶ 29, 43].

At the time Plaintiff was informed of the elimination of her position and that the Director, Specialty Foams position would be awarded to James Thompson, Mr. Daniele and Ms. Hoover spoke to Plaintiff about Bayer's voluntary separation package and advised Plaintiff that there was no place for her at Bayer. [DE 63-6 at 22 of 43]. Plaintiff rejected the voluntary separation package. [DE 63-6 at 25 of 43]. During this time, Defendant laid off a number of employees in Plaintiff's former group, the Polyurethane Group, in connection with its reduction in force. [DE 65 at ¶¶ 21, 23].

On February 26, 2002, Plaintiff filed a charge of discrimination for the elimination of her Froth Foams position and Defendant's decision to award the newly created position of Director, Specialty Foams to James Thompson. [DE 63-3]. Plaintiff did not address Defendant's failure to hire her for any other positions in this charge. [DE 63-3].

In September 2001, about five months after her Froth Foams position was eliminated, Plaintiff was placed in a position called Industry Manager Raw Materials and Spray Elastomers ("Raw Materials position"), an E-1 management position in the Elastomers group with the same salary as her Froth Foams position but with no direct reports or sales or technical staff. [DE 65 at ¶¶ 47, 48]. Additionally, in her Raw Materials position, Plaintiff no longer reported directly to VP Peter Vanacker and was removed from the VP's leadership team, a career-building opportunity. [DE 62 at 6, 21-22; 63-9 at 21 of 30].Sometime after her reassignment to the Raw Materials position, Plaintiff informed her new supervisor, Patricia Boyd, that she needed to more narrowly focus the scope of her responsibilities due to the volume of business for which she was responsible for and her lack of any direct reports or support staff. [DE 65 at ¶49]. In the spring 2002, sixty to eighty million pounds of Plaintiff's product responsibility was then assigned to two other newly appointed business managers in the Elastomers group, Jeff Lear, Business Manager Spray Elastomers/Reinforcement, and Sergio Franyutti, Business Manager Cast Elastomers, both of whom had direct reports, including sales and technical staff. [DE 65 at ¶¶ 53, 56]. These two positions, Business Manager Spray Elastomers/Reinforcement and Business Manager Cast Elastomers, were created in the spring of 2002 in connection with Defendant's reorganization. [DE 65 at ¶63]. Plaintiff, who was not considered for either of these new positions, retained approximately fifty-five million pounds of product, the majority of which was raw materials product. [DE 62 at 7; 65 at ¶¶ 58, 70, 72, 77].

During the time that Plaintiff held her Raw Materials position, two additional industry manager positions were created and filled as part of the reorganization: Industry Manager Special Products and Industry Manager Canal Liners. [DE 65 at ¶86]. These positions were awarded to Sean Gaus and Rolland Bradley, respectively. Plaintiff was not considered for either of these positions. [DE 65 at ¶¶ 87, 89, 90, 91, 94].

In July of 2002, Defendant's parent company announced a restructuring which included the creation of the new Bayer Polymers organization. [DE 65 at ¶99]. In the fall of 2002, Peter Vanacker, then Vice President of the Specialties Business Group, implemented the restructuring. [DE 65 at ¶100]. As part of the restructuring, Peter Vanacker eliminated the raw materials function. [DE 65 at ¶102]. Consequently, Plaintiff's Raw Materials position was eliminated in November 2002 and she was left without a job. [DE 65 at ¶¶ 104, 106]. The positions held by Jeff Lear, Sergio Franyutti, Sean Gaus and Rolland Bradley all survived restructuring. [DE 63-17].

Plaintiff was then considered for, but, denied, six other positions by Peter Vanacker in or around November of 2002. [DE 65 at 108]. Defendant terminated Plaintiff in December of 2002. [DE 65 at 146]. Plaintiff filed a charge of discrimination with the EEOC on May 22, 2003 alleging that her termination and Defendant's failure to hire her for another position were discriminatory and retaliatory. [DE 56 at 15; 63-12].

Plaintiff filed the instant lawsuit on November 24, 2004. [DE 1]. On June 6, 2006, Plaintiff amended her complaint adding the claim of fraudulent concealment, based upon Defendant's alleged concealment of its plan to consolidate Plaintiff's Froth Foams position during the parties' Gaetano I settlement negotiations in March of 2001. [DE 24].

In this case, Plaintiff alleges that Defendant discriminated against her based on her sex and retaliated against her in violation of Title VII and the PHRA, breached the Gaetano I settlement agreement by retaliating against her and failing to remove the disparaging materials from her personnel file, and fraudulently concealed its plan to consolidate Plaintiff's Froth Foams position during Gaetano I settlement negotiations. [DE 39].

On October 6, 2006, Defendant moved for summary judgment as to all of Plaintiff's claims. [DE 54, 55, 56]. As of January 5, 2007, the issues were fully briefed. Then, on April 6, 2007, the case was reassigned from Judge Hardiman to Judge Fischer. A status conference was held before Judge Fischer on May 11, 2007, wherein the parties were given an opportunity to file supplemental briefs to update the Court on any changes in the law since the conclusion of the parties' briefing. Plaintiff filed a supplemental brief on May 23, 2007 and Defendant filed its supplemental brief on June 5, 2007. [DE 77, 78]. This Court now addresses Defendant's motion for summary judgment.


Summary judgment under Fed. R. Civ. P. 56(c) is appropriate "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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." Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). In deciding a summary judgment motion, the court must "view the evidence . . . through the prism of the substantive evidentiary burden" to determine "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Thus, the non-moving party cannot rest on the pleadings, but instead must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), and cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).

"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.' Anderson, 477 U.S. at 255 (1986)." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); see also Doe v. County of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001) (court must view facts in the light most favorable, draw all reasonable inferences, and resolve all doubts, in favor of the non-moving party).


Plaintiff alleges four causes of action which Defendant seeks to dismiss as a matter of law. First, Plaintiff claims Defendant discriminated against her based on her sex in violation of Title VII and the PHRA when it eliminated her Raw Materials position and terminated her employment. Second, Plaintiff claims Defendant committed multiple retaliatory acts against her in violation of Title VII and the PHRA: Defendant's consolidation of her Froth Foams position and failure to award her the new, Director, Specialty Foams position; Defendant's transfer of Plaintiff to the Raw Materials position; Defendant's elimination of her Raw Materials position and ultimate termination; and Defendant's failure to hire Plaintiff for other positions which survived restructuring. Third, Plaintiff claims Defendant breached the Gaetano I settlement agreement by retaliating against her in violation of the terms of the agreement and failing to remove the disparaging materials from her personnel file. Fourth, Plaintiff alleges Defendant fraudulently concealed its plan to consolidate Plaintiff's Froth Foams position during Gaetano I settlement negotiations. [DE 39]. The Court will address each of Plaintiff's claims, in turn.

A. Title VII Claims

Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin, and its anti-retaliation provision forbids discrimination against an employee or job applicant who, inter alia, has made a charge, testified, assisted, or participated in a Title VII proceeding or investigation. Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405, 2406 (2006), citing 42 U.S.C. § 2000e-2(a), 42 U.S.C. § 2000e-3(a). Plaintiff claims she was subjected to discriminatory and ...

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