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Hempling v. United Refining Company of Pennsylvania

January 23, 2008

RICHARD HEMPFLING, PLAINTIFF,
v.
UNITED REFINING COMPANY OF PENNSYLVANIA, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff Richard Hempfling filed the instant civil rights action against Defendant United Refining Company of Pennsylvania (hereinafter "Defendant" or "URC"), alleging age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") and the Pennsylvania Human Relations Act ("PHRA") as well as retaliation, all stemming from his demotion from manager to assistant manager at Defendant's Prospect facility and subsequent replacement by a younger employee in or around September of 2005.*fn1 Pending before the Court is a Motion for Summary Judgment of Defendant United Refining Company of Pennsylvania [DE 27]. For the following reasons, said motion is denied.

FACTS*fn2

Defendant URC owns and operates a number of gas stations and convenience stores known as Kwik Full / Red Apple Food Marts. Plaintiff Hempfling is a 57 year old male who has worked for Defendant URC in various roles since October of 1983, beginning as an assistant manager at the Prospect facility.*fn3 Defendant's Facts at ¶7; Plaintiff's Facts at ¶7.

1. Facts Pertinent to Age Discrimination Claim

In August of 1985, Plaintiff was promoted to manager of URC's Prospect facility, which was a small, full-serve facility until May of 1998, when a new, larger store was built. Defendant's Facts at ¶7; Plaintiff's Facts at ¶7. Plaintiff continued in his role as manager of the new, larger Prospect facility.

After the expansion of the Prospect facility, on undisclosed "several occasions," Defendant URC asserts that David Dunn (Regional Manager) and Pam Devore (District Manager) "cleaned the Prospect store and reset all of the shelves and merchandise, showing Hempfling how to perform these duties." Defendant's Facts at ¶15.*fn4 On March 18, 2003, Defendant by way of Mr. Dunn and Robert Kaminske (Area Manager) "counseled" the Plaintiff regarding "the appearance of the [Prospect facility], cleanliness, condition of the deli area, task urgency, inventory, attention to detail, [and] leadership, among other things" and issued a written warning to Plaintiff as to the same. Defendant's Facts at ¶15.*fn5 On May 23, 2003, Defendant URC via Mr. Dunn and Mr. Kaminske transferred Plaintiff from the Prospect facility to the Slippery Rock facility, a much smaller facility that is "easier to manage" than the Prospect facility. Defendant's Facts at ¶¶17, 20; Plaintiff's Facts at ¶¶17, 20. Mr. Kaminske informed Hempfling that URC transferred him because the Prospect facility was not clean enough, the store was not making enough money on sales merchandise and gas, and projections were going down and he had problems with audits. Defendant's Facts at ¶18; Plaintiff's Facts at ¶18.*fn6 Upon his transfer to the Slippery Rock facility, Plaintiff's pay rate did not change. Defendant's Facts at ¶20; Plaintiff's Facts at ¶20.

Based on Plaintiff's performance at the Slippery Rock Facility, which Defendant characterizes as "competent[]" but Plaintiff characterizes as "outstanding" and "very good", URC gave Plaintiff "another chance" as the manager of the Prospect facility. Defendant's Facts at ¶23; Plaintiff's Facts at ¶23. On November 14, 2003, URC via Pam Devore transferred Hempfling back to the Prospect facility.*fn7 Defendant's Facts at ¶24; Plaintiff's Facts at ¶24.

In 2004, during Plaintiff's term as manager, the Prospect facility received a "very poor" rating as part of a "Spring-Clean Up review." Defendant's Facts at ¶25; Plaintiff's Facts at ¶25. Thereafter on April 6, 2005, Plaintiff attended a management meeting regarding the efficient running of a store. Further, on June 18, 2005, Ms. Devore sent an e-mail to all store managers in her area including Plaintiff"with details on what needed to be worked on to keep stores clean and organized." Defendant's Facts at ¶26; Plaintiff's Facts at ¶26. On the 2005 "Spring-Clean-Up Review", Plaintiff received an "extremely poor" rating. Defendant's Facts at ¶27; Plaintiff's Facts at ¶27. Sometime after Plaintiff's transfer back to the Prospect facility, Mr. Dunn and Ms. Devore discussed their concerns regarding the cleanliness of the store with Hempfling. Defendant's Facts at ¶28; Plaintiff's Facts at ¶28.*fn8 On or about July 13, 2005 and again in August of 2005, Mr. Dunn and Ms. Devore visited the Prospect facility and "counseled Hempfling on the cleanliness and disorganization of the store." Defendant's Facts at ¶30.*fn9

On August 29, 2005, Ms. Devore sent a "memo" to the Plaintiff informing him of his demotion from manager to assistant manager effective September 2, 2005. In the memo, after detailing reasons for his demotion, Ms. Devore stated the following: "I understand that you have been with the company since 1983 and I appreciate your dedication to the company but there comes a time where people lose some of their management skills. The decreases in management skills are very obvious in this case." Docket No. 31-6, at 9. According to Defendant, Plaintiff was demoted "due to his inability to manage the Prospect facility, failure to rectify the problems that he had been warned about on several occasions, in addition to a decrease in sales volumes." Defendant's Facts at ¶¶31; Plaintiff's Facts at ¶31.*fn10 At the time of his demotion, Plaintiff was 55 years old. After consultation with Mr. Dunn, Ms. Devore made the decision to demote the Plaintiff. Defendant's Facts at ¶33; Plaintiff's Facts at ¶33. URC replaced Hempfling with Nick Zorbas as manager of the Prospect facility. Defendant's Facts at ¶36; Plaintiff's Facts at ¶36. At the time of his promotion, Mr. Zorbas was 41 years old. Defendant's Facts at ¶36; Plaintiff's Facts at ¶36.

On December 22, 2005, the U.S. Equal Employment Opportunity Commission ("EEOC") issued a "Dismissal and Notice of Rights" letter to the Plaintiff, which included a Notice of Suit Rights. Within 90 days of receipt of the same, on March 14, 2006, Plaintiff commenced this federal action.

2. Facts Pertinent to Retaliation Claim

Since Plaintiff filed charges with the EEOC against URC and commenced the instant lawsuit, Plaintiff has received nine (9) write-ups related to cash shortages, two (2) write-ups related to drive-offs, one (1) write-up related to Plaintiff's failure to secure a replacement cashier when he was acting as manager, and one (1) write-up related to Plaintiff's failure to perform assigned duties as manager, specifically not replacing pump filters and neglecting to perform the daily cigarette inventory.*fn11

Defendant's Facts at ¶11; Plaintiff's Facts at ¶11.*fn12 URC has a policy that all cash shortages over $5 per shift require a write-up as well as when a customer drives off without paying resulting in a shortage. Defendant's Facts at ¶¶39-40; Plaintiff's Facts at ¶¶39-40.

According to Plaintiff's deposition testimony, at various times in 2006, he was written up for excessive shortages. However, during the shifts in question, Mr. Zorbas also worked the same cash register for part of the shift yet he was not written up for any shortages during this shift. Plaintiff asserts that "[a]t the time, when multiple employees operated a register during a shift, it was impossible to determine which of those employees w[ere] responsible for any shortage that occurred." Plaintiff's Facts at ¶102.*fn13

On June 23, 2006, the EEOC issued a "Notice of Right to Sue" letter, and Plaintiff subsequently ...


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