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Faust v. Scranton Petro

March 31, 2008


The opinion of the court was delivered by: Judge Vanaskie


Pending in this employment discrimination lawsuit is Defendant Scranton Petro, L.P.'s ("Scranton Petro") Motion for Summary Judgment. (Dkt. Entry 12.) Plaintiff Mary Ann Faust was employed by Scranton Petro, an operator of a travel plaza in Dupont, Pennsylvania, until her termination in 2004. Claiming her termination was due to her sex and age, Ms. Faust filed a complaint in this Court asserting Scranton Petro violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634; and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. §§ 951-963. (Dkt. Entry 1.)*fn1 Scranton Petro denies Ms. Faust's allegations and contends she was laid off pursuant to a reduction in force ("RIF"). For the reasons that follow, Scranton Petro's motion will be denied.


A. Procedural Background

On March 31, 2006, Ms. Faust filed a four-count complaint alleging Scranton Petro violated federal and state anti-discrimination laws. (Dkt. Entry 1.) In Count One, Ms. Faust alleged that Scranton Petro terminated her because of her sex, in violation of Title VII. See 42 U.S.C. § 2000e-2(a)(1). In Count Two, Ms. Faust alleged that Scranton Petro terminated her on account of her age -- she was fifty-eight (58) years old on the date she was terminated -- in violation of the ADEA. See 29 U.S.C. § 623(a)(1). Counts Three and Four, respectively, are parallel claims under the PHRA asserting unlawful sex and age discrimination. See 43 Pa. Stat. Ann. § 955(a). Ms. Faust prayed for, among other things, an award of back pay, compensatory damages, and liquidated damages; an order of reinstatement; and an injunction against future discriminatory conduct.

On May 24, 2006, Scranton Petro answered the complaint and denied Ms. Faust's allegations. (Dkt. Entry 4.) After discovery, Scranton Petro filed a Motion for Summary Judgment. (Dkt. Entry 12.) The motion has been fully briefed, (Dkt. Entries 13, 16, 18), and is now ripe for disposition.

B. Factual Background

Scranton Petro is a limited partnership owned by brothers Frederick and Michael Kirschner. (F. Kirschner Aff., Ex. 1 in Supp. Mot. Summ. J., Dkt. Entry 15, ¶ 1.) Frederick Kirschner is Scranton Petro's managing partner, John Diab Sr. is its chief operating officer. (F. Kirschner Dep. ("Kirschner Dep."), Feb. 20, 2007, Ex. 16 in Supp. Pl.'s Counter-Statement Material Facts ("Ex._-PCMF"), Dkt. Entry 17-18, at 9:14-15, 20-21.)

On or about February 16, 2002, Scranton Petro began operating a travel plaza complex, or truck stop, in Dupont, Pennsylvania, as franchisee of Petro Stopping Centers, LP. (F. Kirschner Aff. ¶ 1; Faust Dep., Dec. 8, 2006, Ex.12-PCMF, Dkt. Entry 17-14, at 9:4-6.) The Dupont complex consists of four divisions, or "profit centers": (1) a convenience store known as the "Travel Store"; (2) a restaurant called the "Iron Skillet"; (3) a fuel island; and (4) a service center, or lube bay. (Hodges Dep., Jan. 8, 2007, Ex.15-PCMF, Dkt. Entry 17-17, at 26:1-3.) Each profit center has its own manager, who is supervised by the complex's general manager. (Id. at 26:4-6; Diab Dep., Feb. 20, 2007, Ex.14-PCMF, Dkt. Entry 17-16, at 16:14-16.) The complex manager, in turn, reports to Mr. Diab. (Diab Dep. 16:12-14.) At all times relevant to this matter, Leonard A. Krappa managed the Dupont complex, and Fred L. Hodges managed the Travel Store. (Def.'s Statement Material Facts ("DSMF"), Dkt. Entry 26, ¶¶ 14, 16.)

Scranton Petro retained certain managers and employees of the previous operator of the Dupont complex, including Ms. Faust. Ms. Faust began working at the Dupont complex on May 12, 1997. Starting as a cashier, she was promoted in or about September of 1997 to assistant manager of the midnight shift. (Pl.'s Counterstatement of Material Facts ("PCMF"), Dkt. Entry 17, ¶ 5; Faust Dep. 8:10-18.) She eventually moved from midnight shift to second shift and then to day shift, a shift she worked regularly for approximately six to seven months following the February, 2002, change of control. (Faust Dep. 14:21-15:14, 17-20.) Thereafter until her termination in April or May, 2004, Ms. Faust's schedule, as with the other assistant managers, varied between all three shifts. (Id. at 15:14-16, 21-24; id. at 19:12-18.)

As assistant manager, Ms. Faust supervised the cashiers, responded to customer complaints, prepared daily reports, oversaw the lottery machine, and prepared payroll. (Id. at 13:11-18; id. at 23:6-10.) When Scranton Petro took control of the Dupont complex, Ms. Faust performed more bookkeeping duties, as she was responsible for preparing daily bank deposits and completing additional reports. (Id. at 12:15-21.) Ms. Faust testified that her duties were no different from that of the other assistant managers, except they did not prepare payroll or oversee the lottery machine. (Faust Dep. 22:13-18.)*fn2

Mr. Hodges became manager of the Travel Store several months after Scranton Petro began operating the Dupont complex. At that time, Ms. Faust was the only assistant manager. The store was later reorganized, which entailed hiring additional assistant managers. By January 1, 2004, the Travel Store employed three assistant managers. In addition to Ms. Faust, there was Michael Schoen, hired September 1, 2003, and Matthew Lee, hired December 1, 2003. (Census of Active & Inactive Employees ("Employee Census"), Ex.1-PCMF, Dkt. Entry 17-3, at 2; id. at 10.) Both men were younger than Ms. Faust, born, respectively, in 1965 and 1967. (DSMF ¶¶ 5, 9.) Ms. Faust, however, was paid a higher salary than her colleagues, earning $1,250 every two weeks while Mr. Schoen received $1,200 and Mr. Lee $1,100. (Id. ¶¶ 3, 7, 10.)

In or around February, 2004, Mr. Kirschner met with Mr. Diab to discuss the financial status of the Dupont complex. After analyzing the financial data and consulting with Mr. Diab regarding the current business plan, Mr. Kirschner decided change was necessary and instructed Mr. Diab to devise a new strategy to reduce expenses and make the business profitable. (Kirschner Dep. 11:2-14.) Mr. Kirschner offered no specific proposals in this regard. Instead, he deferred to Mr. Diab's judgment and management skills to effectuate his instructions. (Id. at 11:18-21, 12:12-16.) He observed to Mr. Diab, however, that payroll comprised fifty percent of the company's expenditures. (Id. at 12:21-23.) "[T]he primary area to make an impact, immediate impact is in payroll." (Id. at 12:23-25.)*fn3

To execute Mr. Kirschner's instructions, Mr. Diab designed the RIF plan, which he viewed the best way to improve the bottom line. (Diab Dep. 53:9-24.) Mr. Diab conceived this idea without consulting or obtaining approval from Mr. Kirschner. (Kirschner Dep. 13:15-24.) The plan, which was implemented in April, 2004, and completed by August, 2004, called for eliminating "highest paid personnel," specifically two gentlemen from the Bordentown location who provided services at Dupont. (Diab Dep. 54:3-55:20.) Additionally, assistant managers with "shaky" performances were cut, certain open positions were never filled, and Mr. Krappa was demoted to restaurant manager, a position he held prior to his promotion to complex manager. (Id. at 54:21-55:8.) By August, Mr. Diab claimed, "we were significantly saving." (Id. at 55:9-10.)

In implementing this strategy, Mr. Diab spoke to the profit center managers (including Mr. Hodges) and the complex manager (Mr. Krappa) in February or March, 2004, instructing them to reduce their respective payrolls. (Id. at 56:21-57:1; id. at 61:17-18, 62:4-8.) They were advised to consider employee salaries. No specific instructions, though, were given as to the number of employees to eliminate or the dollar amount by which payroll must be reduced. (Id. at 58:2-9.)

One of the employees Scranton Petro contends was selected for termination was Ms. Faust. Mr. Diab recounted discussions he had with Messrs. Krappa and Hodges, allegedly in the context of the RIF. The gentlemen approached Mr. Diab and expressed dissatisfaction with Ms. Faust's performance. (PCMF ¶ 10.) It is unclear what Messrs. Krappa and Hodges found unsatisfactory about Ms. Faust's performance. Mr. Diab was told by them before this conversation that Ms. Faust was having "problems" with customers and other employees of the Travel Store, but he could not recall any details about these "problems." (Diab Dep. 47:23-48:11.) In any event, Mr. Diab responded to their complaints by stating "if we're not satisfied, then we should terminate her and move on." (Id. at 49:9-10.) The decision to terminate, however, was relegated to Messrs. Krappa and Hodges. (PCMF ¶ 9.) Presumably they decided to terminate Ms. Faust, although Mr. Diab did not explicitly testify as such.

Messrs. Hodges and Krappa offered conflicting accounts regarding the RIF and Ms. Faust's selection therefor. According to Mr. Hodges, he attended a meeting with Mr. Diab, Mr. Krappa, and Ray Castor, a consultant from the Bordentown complex. (Hodges Dep. 72:2-4.) The date of the meeting is unknown, although it appears to have occurred shortly before Ms. Faust's termination. Mr. Hodges learned that personnel cuts were to be made; that this was happening throughout the complex; and that an assistant manager from the Travel Store would be eliminated. (Id. at 71:23-72:1; id. at 72:6-10; id. at 73:16-22.) He testified that he never suggested that Ms. Faust or any other Travel Store employee be eliminated. (Id. at 74:15-17, 21.) On the contrary, he told Mr. Castor of his desire to retain his store's entire workforce because the Travel Store itself was profitable, but this plea was unavailing. (Id. at 72:17-19, 72:25-73:2.) By the end of that day, Mr. Hodges learned, via Mr. Castor, that Mr. Diab selected Ms. Faust for termination, "that we had to let [her] go as soon as possible." (Id. at 71:4-5; id. at 74:10-14.) No explanation was given to Mr. Hodges why Ms. Faust was selected, nor did he request one from Mr. Diab. (Id. at 74:22-75:2.) Indeed, Mr. Hodges denied even conferring with Mr. Diab in relation to Ms. Faust's termination. (Id. at 83:21-23; id. at 110:2-5.)

Mr. Krappa testified that he was never told by Mr. Diab or anyone else about the RIF or the need to reduce payroll. (PCMF ¶ 36.) Furthermore, according to Mr. Krappa, the decision to terminate Ms. Faust was unrelated to a workforce reduction. In this regard, Mr. Krappa related a meeting that transpired approximately seven to ten days before Ms. Faust's termination. Mr. Diab visited the Dupont complex. After he and Mr. Krappa finished a "walk-around" of the complex, they met Mr. Hodges and "had some idle discussion about the restaurant and travel store." (Krappa Dep., Feb. 20, 2007, Ex.13-PCMF, Dkt. Entry 17-15, at 34:23-35:4.) Mr. Diab asked Mr. Hodges how Ms. Faust "was holding up" and pressed him "to get more out of her." (Id. at 35:4-5; id. at 40:4-5.) Mr. Hodges answered that "because of her health and her age that, you know, she's not going to be able to do what you want her to do." (PCMF ¶ 15.) Mr. Krappa testified to Mr. Diab's response: "[Mr. Diab] made an umpire's out sign with his thumb and said, [']shoot her.['] And [Mr. Hodges] said, [']why?['] [Mr. Diab] said, ['get] [sic] rid of her.'" (Krappa Dep. 35:14-17; see also id. at 73:9-10.)

When Mr. Hodges departed, Mr. Krappa tried to dissuade Mr. Diab from terminating Ms. Faust, observing she had been at the Dupont complex for several years and was a good, honest worker. (Id. at 42:10-15.) Mr. Diab, however, rebuffed this appeal and rebuked Mr. Krappa for not being "hard enough [and willing] to look past an individual and make a tough decision." (Id. at 42:20-23.) This was the last conversation Mr. Krappa had with Mr. Diab about Ms. Faust prior to her termination. Mr. Krappa noted that nothing was mentioned during this discussion with Messrs. Diab and Hodges about Ms. Faust's productivity or her salary (i.e., that she was the highest paid assistant manager). (Id. at 57:22-58:10.)

Seven to ten days later, Mr. Krappa was informed by Mr. Hodges that Mr. Diab ordered Ms. Faust's termination, and that he intended to terminate her the same day. (Id. at 43:2-13.) Mr. Krappa disagreed with this decision. (Id. at 44:5-6.) Nevertheless, he ...

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