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Shontz v. Rite Aid of Pennsylvania Inc.

March 24, 2008

THOMAS K. SHONTZ, PLAINTIFF,
v.
RITE AID OF PENNSYLVANIA INC., DEFENDANT.



The opinion of the court was delivered by: Judge Joy Flowers Conti

MEMORANDUM OPINION

Pending before this court is a motion for summary judgment (Doc. No. 27) filed by defendant Rite Aid of Pennsylvania, Inc. ("Rite Aid" or "defendant"). Plaintiff Thomas K. Shontz ("Shontz" or "plaintiff") filed this civil action asserting two claims: a claim under the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. ("ADEA"), and a claim under the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. § 954(b) ("PHRA").*fn1 Plaintiff, while admitting to violating Rite Aid's company policy, asserts that fellow employees under the age of forty engaged in the same activity, yet were not subject to disciplinary measures. Plaintiff asserts that younger, similarly situated employees were given more favorable treatment. Because plaintiff was forty-years-old at the time that he was disciplined, i.e., terminated for engaging in activity for which other employees were not similarly disciplined, plaintiff claims he was discriminated against on the basis of his age. After reviewing the record, viewing all disputed facts in plaintiff's favor and drawing all reasonable inferences in plaintiff's favor, the court concludes that no reasonable finder of fact could render a verdict for plaintiff on his claims. Under those circumstances, summary judgment will be granted in favor of defendant.

Factual Background

The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 255 (1986). ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.")

In 1985, plaintiff was hired as a manager trainee by defendant. (Pl.'s Ex. A at 66.) In 1999, plaintiff was promoted to district manager for the western district of Pennsylvania. (Pl.'s Ex. B at 18-19.) In his position, plaintiff managed twenty-one Rite Aid stores. Plaintiff's immediate supervisor from October 2003 through August 2004 was Jeffrey Schilling ("Schilling"), regional vice president of Rite Aid. (Joint Statement of Undisputed Material Facts ("J.S.") ¶3.) Schilling placed a high value on loyalty and had believed that plaintiff was loyal prior to the incident that led to plaintiff's termination. (J.S. ¶6.) Schilling had previously "gone to the wall" for plaintiff earlier in plaintiff's career. (Pl.'s Ex. B at 52.) Specifically, Schilling's supervisors had expressed an interest in terminating plaintiff's employment, but Schilling believed plaintiff's performance could be "turned around." (Pl.'s Ex. B at 51-52.)

Trade Show

In August 2004, Rite Aid had its annual trade show and supplier exhibition (the "trade show.") (J.S. ¶13.) The trade show is an event meant solely for Rite Aid employees and vendors. (Id. ¶25.) Prior to the trade show, Julie Thomas ("Thomas"), a Rite Aid pharmacist under plaintiff's supervision, informed plaintiff that her friend, Kristine Breitenbach ("Breitenbach"), wanted an employee name badge so that Breitenbach could gain access to the trade show. (Id. ¶13.) On the final day of the trade show, plaintiff provided Thomas with the name badge of an absent Rite Aid employee, Deborah Kostolich ("Kostolich") to give to Breitenbach, a non-Rite Aid employee. (Id. ¶18.) Plaintiff admits that he expected Thomas to give the name badge to Breitenbach so that Breitenbach could gain access to the trade show. (Id. ¶19.) Breitenbach wore Kostolich's name badge credentials and was able to attend the trade show. (Id. ¶19, ¶25.)

Before giving the name badge to Thomas for Breitenbach's benefit, plaintiff did not ask Schilling for clarification regarding Rite Aid's position on providing false credentials to non-employees. Additionally, plaintiff failed to request permission to give Kostolich's name badge credentials to Breitenbach. (Id. ¶21, ¶31.) The day before the trade show, plaintiff provided Schilling's assistant with a list of employees that plaintiff recommended be permitted to attend the trade show. (Id. ¶¶22-23.) Plaintiff did not include Breitenbach's name on the list. (Id.) Plaintiff knew that friends and families of Rite Aid employees were not permitted to attend the trade show. (Id. ¶26.) Plaintiff understood that the trade show was intended to be a function meant solely for Rite Aid employees and selected vendors. (Id. ¶25.)

During the trade show, Thomas introduced Breitenbach to Schilling. (Id. ¶33.) Schilling recognized that Breitenbach was not Kostolich, as stated on her name badge. (Id. ¶34.) When questioned by Schilling, Breitenbach admitted that she was a pharmacist employed by Express Scripts and not a Rite Aid employee. (Id. ¶¶ 35, 37.) Schilling learned that plaintiff had provided Thomas with the false name badge credentials to give to Breitenbach so that Breitenbach could attend the trade show. (Id. ¶38.) Plaintiff believes that Breitenbach attended past trade shows, but does not know who previously supplied her with the false credentials. (Pl.'s Ex. A at 234-38.) Plaintiff does not know which employee's credentials Breitenbach wore at prior trade shows. (Id.)

Schilling believed that plaintiff's decision to supply Breitenbach with false credentials constituted dishonest or fraudulent conduct. (J.S. ¶40.) Upon returning to his Pittsburgh office, Schilling contacted Janet Emerson ("Emerson"), senior vice president, and Keith Lovett ("Lovett"), senior vice president of labor and human resources. (Pl.'s Ex. B at 96-97.) Lovett and Emerson directed Schilling to terminate plaintiff's employment. (Id.) Pursuant to Lovett's and Emerson's directive, Schilling terminated plaintiff's employment on August 19, 2004. (J.S. ¶1.) Plaintiff never informed Schilling of his age prior to the termination of his employment. (Id. at ¶59, ¶60.)

Plaintiff's Replacements

To date, Rite Aid has not hired a new replacement for plaintiff's position as district manager of twenty-one Rite Aid stores. (Id. ¶¶47-48.) After plaintiff's termination, the remaining district managers divided plaintiff's former stores among them. The remaining district managers included: Robert McEvoy ("McEvoy"), Jeffrey Suriano ("Suriano"), Elizabeth Naggy ("Naggy"), and David Hamstead ("Hamstead"). (Def.'s Ex. E ¶¶3-7.) Hamstead was assigned five stores. (Id. ¶7.) Naggy was assigned three stores. (Id. ¶4.) McEvoy was assigned seven stores. (Id. ¶5) Suriano was assigned six stores. (Id. ¶6.)

At the time of plaintiff's termination, the mean (or average) age of the district managers who assumed responsibility of plaintiff's former stores was 40.7. (Id. ¶¶4-7.) The replacement age of the district managers at the time of plaintiff's termination was 39.7, after weighting the ages to reflect the percentage of plaintiff's stores assigned to each individual district manager. (Id.) The replacement age average is approximately one year younger than plaintiff's age at the time of plaintiff's termination. (J.S. ¶55.) Schilling did not know plaintiff's age or whether he was over forty years of age, under forty years of age or exactly forty-years-old when he terminated plaintiff's employment, on August 19, 2004. (Pl.'s Ex. B at 77-78, 209-10.) Plaintiff never informed Schilling, Lovett, or Emerson that he would be forty-years-old on December 6, 2003. (J.S. ¶¶58, 60.)

Allegations of Favorable Treatment by Schilling

Plaintiff alleges that, in similar situations, the following Rite Aid employees were treated more favorably then he: Thomas, Andrew Heuer ("Heuer"), Suriano, and McEvoy. (Id. ¶¶61-89, 102-05.) Thomas was not disciplined by Schilling for giving Breitenbach the false name badge credentials because she received permission, as well as the false name badge credentials, from plaintiff, her supervisor. (Pl.'s Ex. B. at 139-40; Pl.'s Ex. F at 48-49.) Schilling did not view Thomas' actions as fraudulent or dishonest. (Pl.'s Ex. B. at 139-40.)

On the night that Breitenbach attended the trade show, Heuer, a Rite Aid pharmacy development manager, gave Thomas a spare room key. (J.S. ¶64.) Heuer denied any prior knowledge of Breitenbach's plan to attend the trade show or that she was not a Rite Aid employee. (Def.'s Ex. C. at 143.) Heuer informed Schilling and Dennis Palko ("Palko"), the human resources manager, that he supplied Thomas with an extra room key because she had been forced to share a single bed with another employee as a result of a hotel error. (Def.'s Ex. C. at 145.) Heuer was forty-six-years old at the time of plaintiff's termination. (J.S. ¶68.)

After a regional meeting held by Schilling on March 3, 2004, plaintiff, Bernard Krcha ("Krcha"), and Naggy, three district managers age forty and over, received disciplinary warning letters for disrespectful and disruptive behavior during the meeting. (Pl.'s Ex. B at 44-45.) Plaintiff admits that he raised his voice at Schilling. (J.S. ¶10.) Suriano participated in the same conduct as plaintiff, Krcha, and Naggy, and did not receive a disciplinary warning letter. (Pl.'s Ex. C at 42, 44, 55-56; Pl.'s Ex. D at 33-34.) Schilling referred to Suriano as one of his "young bucks." (Pl.'s Ex. C at 37.) Even though plaintiff raised his voice at Schilling during the regional meeting, he was not penalized with a pay reduction, loss of benefits, or removal of job responsibilities or duties. (J.S. ¶11.)

An anonymous complaint was made by phone which alleged that Suriano had urinated on the Baltimore Ravens' football field during the trade show. (Id. ¶70.) Suriano was investigated by Sherry Mullens ("Mullens"), a Rite Aid human resource director, for unprofessional conduct at the trade show. (Pl.'s Ex. B at 147-49.) Suriano denied urinating on the field. (J.S. ¶73.) After an independent investigation into the allegations, Mullens determined that the complaint was malicious and without merit. (Pl.'s Ex. B. at 147, 152-53.)

Plaintiff alleges that McEvoy received a higher salary as a district manager and was, therefore, treated more favorably than him. Plaintiff, however, does not know McEvoy's salary. (Id. ¶¶102-03.) Plaintiff did not know whether Schilling, his former supervisor, had the authority to set salaries. (Id. ¶104.) Schilling did not have the authority to set district managers' salaries. (Pl.'s Ex. B at 193.)

Allegations of Less Favorable Treatment by Schilling

Plaintiff alleges that two employees, Krcha and Michael Gironda ("Gironda") are similarly situated to him and were also treated less favorably than their younger co-workers because of their ages. Krcha, a former district manager, voluntarily retired at the age of seventy-three. (J.S. ¶¶92-93.) Schilling asked Krcha when he would retire on approximately six separate occasions because Schilling had promised Krcha's position to his good friend, McEvoy. (Pl.'s Ex. C at 9-10; J.S. ¶¶90-91.)

Gironda, a Rite Aid loss prevention manager, informed Schilling that he was interested in Krcha's vacated district manager position. (J.S. ¶94.) Gironda was fifty-one-years-old at the time he applied for the position. (Id. ¶98.) Schilling hired McEvoy, a younger candidate, for the vacated district manager position. (Id. ¶95.) Gironda believed that he was not hired to fill the vacated position because of his age. (Id. ¶96.) Schilling referred to him as "old school." (Id.) Gironda admited that he has referred to himself as "old school" numerous times during his employment with Rite Aid. (Def.'s Ex. J at 3-8.) Gironda further admits that he has no evidence, proof, or knowledge to support an allegation that he was not chosen for the position because of his age. (J.S. ¶100.) Gironda never formally complained about age discrimination to his supervisors at Rite Aid and continues to work for Rite Aid.. (Id. ¶99.)

Procedural Background

On May 25, 2005, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), which was cross-filed with the Pennsylvania Human Relations Commission, alleging age discrimination in his discharge. (Id. ΒΆ108) On August 30, 2005, the EEOC issued a Dismissal and Notice of Rights. Plaintiff timely commenced this lawsuit. Rite Aid filed the instant motion for ...


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