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Hendershot v. Home Depot

February 13, 2009


The opinion of the court was delivered by: Slomsky, J.



Plaintiff filed this employment discrimination case on April 2, 2008. It was removed to this Court on April 25, 2008. In his Complaint, Plaintiff alleges that he was wrongfully terminated from his employment at Defendant's store for two reasons: (1) as a result of his age; and (2) as a result of Defendant's retaliation against him for taking the position that he would truthfully testify at the Equal Employment Opportunity Commission ("EEOC") hearing of one of Defendant's former employees to the detriment of the Defendant. Defendant has filed a Motion for Summary Judgment seeking dismissal of these claims.

Plaintiff was hired by Defendant in the Spring of 2004 to work as a Sales Associate in Defendant's Phillipsburg, Pennsylvania store. Plaintiff was 53 years of age when he was hired by Defendant. In July, 2004, Plaintiff was transferred to the position of Loss Prevention Investigator ("LPI"). Plaintiff received a seven-week-long training program to become an LPI, and during this training was taught required steps that needed to be followed before stopping a customer for shoplifting.*fn1 Plaintiff was also informed about the store's policy on non-recovery incidents ("NRI"), which cover incidents where an LPI detains a customer for shoplifting and it is determined that the customer is not in possession of stolen merchandise. Plaintiff was transferred to Defendant's Easton, Pennsylvania store on July 27, 2004, after he became a certified LPI.

Plaintiff was disciplined in August 2005 for having an NRI, and was informed that if Plaintiff had any additional NRIs, it would result in immediate termination.*fn2 Plaintiff was also counseled by his supervisor, Shelby Miller, for his lack of apprehensions of shoplifters, and was informed in his March 2005 performance review that he needed to increase his productivity.

In August 2005, while working as an LPI, Plaintiff reported an incident of possible internal theft by a Home Depot Cashier, Sandra Singletary. The incident was reported to Miller, who investigated the incident and then recommended terminating Singletary's employment. In October 2006, Plaintiff was approached by Jeffery Benner, the Human Resource Manager in the Easton store, to request that Plaintiff testify at a hearing on a discrimination claim brought by Singletary, who had initiated an employment discrimination action with the Equal Employment Opportunity Commission ("EEOC") after being terminated. Plaintiff told Benner that he did not have any recollection of the incident involving Singletary, and Benner told Plaintiff to read a report prepared by Miller, and to testify to the facts in that report. Plaintiff, after reading Miller's report, independently investigated the incident and determined that Singletary had done nothing inappropriate and that she was wrongfully terminated. Plaintiff told Benner that he did not agree with the findings in Miller's report, and suggested that the company settle with Singletary. On Friday November 3, 2006, Benner told Plaintiff to report to work on Monday, November 6, 2006 to testify at Singletary's EEOC hearing. Plaintiff responded that he would attend and testify at the hearing, but he would testify truthfully.

On Saturday, November 4, 2006, Plaintiff was involved in an incident in which a customer attempted to return an item for which he did not have the correct receipt. The parties' description of this event differ. Defendant claims that Plaintiff committed an NRI by apprehending the customer and accusing him of "receipt shopping," which encompasses entering the store with the receipt and selecting a product on the receipt from a shelf with the intention of using this product as a ruse sale with the receipt in order to obtain a refund. Plaintiff has presented a surveillance video from the store on that day that corroborates Plaintiff's interpretation of the events. Plaintiff states that the customer was waiting in the return area after being told he could not return the item. Plaintiff and the cashier then approached the customer. Plaintiff told the customer he had the wrong receipt and allowed the customer to return to his car to get the correct receipt. The customer brought back the correct receipt and then properly returned the product.

On Sunday November 5, 2006, one day before Singletary's EEOC hearing, Plaintiff was terminated from his employment for having a second alleged NRI, stemming from the incident with the customer the day before. Plaintiff claims that he was wrongfully terminated for insisting on testifying truthfully at Singletary's EEOC hearing and also due to his age. Defendant filed this Motion for Summary Judgment on January 23, 2009, and Plaintiff filed his response on February 6, 2009.


Granting summary judgment is an extraordinary remedy. Summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." Fed. R. Civ. P. 56(c). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court's task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Liberty Lobby, 477 U.S. at 247-49.

In ruling on a motion for summary judgment, the Court must view the evidence, and make all reasonable inference from the evidence, in the light more favorable to the nonmoving party. Liberty Lobby, 477 U.S. at 252. Whenever a factual issue arises which cannot be resolved without a credibility determination, at this stage the Court must credit the nonmoving party's evidence over that presented by the moving party. Liberty Lobby, 477 U.S. at 255. Distilled to its essence, the summary judgment standard requires the non-moving party to create a "sufficient disagreement to require submission [of the evidence] to a jury." Liberty Lobby, 477 U.S. at 251-52.


Defendant's Motion for Summary Judgment must be denied. Plaintiff has demonstrated the existence of genuine factual issues that are material to the claims and defenses in this case. Plaintiff has established that a genuine issue of material fact exists as to whether Plaintiff has made out a prima facie case of retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA") for engaging in protected activity. The analysis of Plaintiff's claim is the same under both Title VII and PHRA. Weston v. Pennsylvania, 251 F.3d 420, 426 n.3 (3d. Cir. 2001). In order to state a prima facie case of retaliation, Plaintiff must show that: (1) he engaged in protected activity; (2) Defendant took an adverse employment action against Plaintiff after or contemporaneous with the protected activity; and (3) a causal connection exists between the protected activity and the adverse employment action. Fogelman v. mercy Hospital, Inc., 283 F.3d 561, 567-68 (3d. Cir. 2002); Weston, 251 F.3d at 430.

The parties agree, for the purposes of summary judgment, that Plaintiff has suffered an adverse employment action. Defendant alleges, however, in its Motion for Summary Judgment that Plaintiff has not established the other requirements for establishing a prima facie case for retaliation. Contrary to Defendant's assertions, plaintiff has established that a genuine issue of material fact exists as to whether Plaintiff's statement that he would "tell the truth" at Ms. Singletary's EEOC hearing ...

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