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Belcastro v. Sears

March 3, 2009


The opinion of the court was delivered by: Conti, District Judge


In this memorandum opinion, the court considers the motion for summary judgment (the "Motion") (Docket No. 35) filed by defendant Sears Roebuck & Company ("Sears" or "defendant"),*fn1 against all claims asserted by plaintiff, Gregory F. Belcastro ("Belcastro" or "plaintiff") under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. ("ADEA"). After reviewing the record, considering the briefs in support of and in opposition to the Motion, viewing all disputed facts in plaintiff's favor and drawing all reasonable inferences in plaintiff's favor, the court concludes that because there are genuine issues of material facts in dispute, defendant's Motion will be denied.

I. 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. 242, 255 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."); see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (When a court considers a motion for summary judgment, "[i]nferences should be drawn in the light most favorable to the nonmoving party, and where the nonmoving party's evidence contradicts the movant's then the non-movant's evidence must be taken as true.").

A. Defendant and its Relevant Personnel

Defendant is a leading retailer providing a wide range of home merchandise, apparel and automotive products and related services to consumers throughout the United States and Canada. Joint Statement of Material Facts ("JS") (JS ¶ 1.) Defendant has a full-line store (the "store") that offers automotive products and services in Washington, Pennsylvania. (Id. ¶ 2.)

From April 1, 2003 through March 16, 2006, Theresa Maksa ("Maksa") was employed as the store's manager. (Id. ¶ 3.) From 1997 through, at least, October 7, 2008, William Angott ("Angott") was employed as the store's auto center manager. (Id. ¶ 5.) Preceding Angott, Harry Smith ("Smith") was employed as the store's auto center manager for an undisclosed period of time. (Id. ¶ 158.) Clive Heller ("Heller") was employed as the store's auto center manager from October 1978 through October 1988. (Id. ¶ 7.)

From 2000 through early August 2004, Debra D'Agaro ("D'Agaro") was an assistant manager in the store's auto center under Angott as manager. (Id. ¶¶ 243-44.) From 2000 until October 2004, Thomas Mirabella ("Mirabella") also worked as an assistant manager in the auto center. (Id. ¶ 8.) From 1996 until her retirement in December 1999, Karen Bedillion ("Bedillion") worked as the store's auto center assistant manager. (Id. ¶ 9.)

For the last for twenty-one years, Wayne Livingood ("Livingood") worked as a service technician III ("tech III") in the store's auto center. (Id. ¶ 13.) Livingood's date of birth is October 10, 1966. (Id. ¶ 14.) From November 2002 to August 2005, Christopher Shaw ("Shaw") also worked as a tech III at the store's auto center. (Id. ¶ 15.) Shaw's date of birth is January 2, 1982. (Id. ¶ 16.) Darryl Craig ("Craig") worked as a tech III and was one of the youngest in that position. (Id. ¶ 166.)

At the relevant time period, Tina Zadwornyj ("Zadwornyj"), was a human resource consultant employed by defendant in Illinois to provide guidance to store level management across the county regarding human relations issues and application of policies and procedures. (Id. ¶¶ 71, 75.) During that same period, Solomon Chambers ("Chambers") was employed by defendant as an auto center sales associate. (Id. ¶ 184.)

B. Plaintiff's Employment

Plaintiff worked as a tech III at the store in the auto center from 1971 until his termination. (Id. ¶ 11.) Plaintiff's date of birth is June 5, 1953. (Id. ¶ 12.) Plaintiff was approximately fifty-one years, two months old on August 9, 2004, the day he was terminated from defendant's employment. (Id.) As the highest level of auto technician employed at this Sears Auto Center, tech III, plaintiff was responsible for all auto mechanical work Sears performed, including brakes, alignments, air conditioning, oil changes, tires and inspections. (Id. ¶¶ 36- 37.)

Plaintiff testified that defendant was trying to establish a basis for terminating him by writing him up all the time for minor infractions or customer comebacks. (Id. ¶ 122.) Plaintiff believed that he was scheduled to work more evening shifts than Livingood and Shaw and that, unlike others, his schedule was frequently changed at the last minute. (Id. ¶¶ 132-33.) Plaintiff also had problems scheduling his vacation days and parking in the customer area. (Id. ¶¶ 139, 145.) Plaintiff believes that he was discriminated against because, due to his tenure of employment, he allegedly made the most money of any mechanic and received enhanced sick-time benefits and vacation time. (Id. ¶ 147.)

Angott, Shaw and Bedillion testified that other similarly-situated employees not within plaintiff's protected class engaged in the same or similar conduct as plaintiff and were treated differently than plaintiff with regard to counselings or disciplinary actions. (Id. ¶ 123.) Angott testified that plaintiff was a good mechanic and that he hoped plaintiff would not be terminated. (Id. ¶ 149.)

C. Defendant's Personal Vehicle Policy

Defendant maintains an automotive group associate handbook that contains its guidelines for proper business conduct. (Id. ¶ 17.) Among those guidelines, defendant maintains a policy titled, "Working on Personal Vehicles." (Id. ¶ 18.) The policy states in relevant part:

When our associates use the service area to service their own vehicles, customers are likely to be inconvenienced. This can create customer service problems that make us look unprofessional. Even after business hours, associates working on their own vehicles on the premises can be a serious safety risk. To assure the best possible service for customers -- and maximize safety for our associates, Sears Automotive Group associates are not permitted to work on their own vehicles in any store at any time[.] . . . Failure to comply with this policy is grounds for termination. (Id. ¶ 19)(emphasis added). The term "their own vehicle" is undefined. (Id. ¶ 154.) The policy makes no reference to family member's vehicles in its prohibition. (Id. ¶ 223.)

In January 2001, plaintiff received a copy of the automotive group associate handbook and was aware that violation of the "personal vehicle policy" provided grounds for immediate termination. (Id. ¶¶ 22-24, 222.) Plaintiff completed a quiz regarding the handbook, and one of the quiz questions stated, "As a Sears Automotive Group Associate, when are you allowed to work on your own vehicle in the backshop?" with possible answers: 1) whenever the backshop is slow, 2) you are not allowed to work on your own vehicle in the backshop and 3) on your day off. (Id. ¶¶ 27-28.) Plaintiff answered the question on the quiz by checking the box next to the second choice "you are not allowed to work on your own vehicle in the backshop." (Id. ¶ 30.)

D. Defendant's Personal Vehicle Policy in Practice

Plaintiff believes that he did not violate defendant's personal vehicle policy on August 7, 2004, because he had previously inspected his immediate family members' vehicles and was not disciplined for his actions. (Id. ¶ 104.) Plaintiff worked on his son's vehicle in the auto center in 2000. (Id. ¶ 112.) D'Agaro testified she examined the title to the car of plaintiff's son. (Id. ¶ 256.)

On December 4, 2003, plaintiff inspected his daughter's vehicle, a 2001 Honda Civic. (Id. ¶ 105.) Angott was the auto center manager at that time, but was not in the auto center on that day because he was on vacation. (Id. ¶ 107.) Angott had managerial responsibility for the auto center and served as the immediate reporting supervisor of the assistant manager on duty that day. (Id. ¶¶ 106, 108.) Defendant disputes that Angott was aware of plaintiff's inspection of his daughter's Honda on December 4, 2003. (Id. ¶ 106.)

It is uncontested that defendant's records establish that on November 26, 2001, plaintiff inspected a vehicle belonging to his wife. (Id. ¶ 113.) Angott was the auto center manager at the time, but was also on vacation when that inspection was performed. (Id. ¶ 114.) Defendant contends that Angott had no knowledge of this inspection, or that plaintiff had apparently performed it. D'Agaro and Chambers testified that the knowledge of lower level managerial personnel in the auto center would be imputed to direct reporting superiors within defendant's organization, such that the knowledge of Mirabella, D'Agaro*fn2 and Bedillion would be imputed to Angott. (Id.)

Shaw testified that his understanding of the personal vehicle policy did not prohibit him from working on a vehicle owned by another member of his household and that he had worked on his family members' vehicles on a number of occasions without incident, including the vehicles of his mother and his father, with whom he lived at the time. (Id. ¶ 295-97.) Shaw testified that the first time he inspected his mother's car he "ran it past [Mirabella]" to make sure it was not against policy. (Id. ¶ 298.) On the occasion of one of the inspections, Shaw testified that he drove the vehicle in question to the automotive center. (Id. ¶ 299.) Craig testified that he fixed a flat on his personal truck and Mirabella watch him do it without intervening. (Id. ¶ 300.)

Former auto center manager, Heller, held meetings with his auto associates to review the policy prohibiting work on personal vehicles. (Id. ¶ 21.) Heller, Angott and Bedillion each testified that they interpreted defendant's personal vehicle policy as prohibiting a mechanic from working on vehicles belonging to the mechanic or one of the mechanic's immediate family members. (Id. ¶¶ 100-02.) Angott did not discipline Shaw for working on a vehicle belonging to Shaw's uncle. (Id. ¶ 314.) Angott did not discipline Craig for working on vehicles belonging to Craig's brother or sister-in-law. (Id. ¶ 315.)

Bedillion testified that the usual disciplinary practice was to start by giving a verbal warning and that she understood that a "three write-up" rule, i.e., three written warnings before termination, generally applied to all of defendant's policy rule infractions, including specifically the "personal vehicle policy," with the only exceptions to the rule being theft and insubordination. (Id. ¶¶ 171, 181.) Bedillion was "not really" encouraged to consult with the handbook when she was implementing warnings or applying policies, and with three or possibly four write-ups, she understood that termination would be discretionary and not mandatory. (Id. ¶¶ 181-82.)

Sometime between 1996 and 1999, when plaintiff specifically asked Bedillion if he could work on his wife's vehicle, she told him that he could not work on the vehicle. (Id. ¶ 103.) On another occasion, Bedillion gave her permission for Craig to violate the policy by performing work on a vehicle owned by him in the course of servicing a customer's vehicle. (Id. ¶¶ 167-68.)

On September 24, 2003, defendant's records indicate that Shaw inspected a vehicle belonging to his parents after he inquired with the assistant manager at the time, Mirabella, about whether he could service his parents' vehicles. (Id. ¶¶ 117-18.) Shaw testified that Mirabella permitted him to do so and that Mirabella knew that Shaw lived with his parents at the time of this inspection. (Id. ¶¶ 118-19.) Likewise, Smith, the manager of the auto center who preceded Angott, and under whom plaintiff worked, would put his "own vehicle" up on the rack in the auto center and work on it. (Id. ¶ 158.)

Chambers testified that he had observed other mechanics working on their own cars in the auto center, although he was not able to identify specific dates or whether others' work involved inspections, except that he was able to recall that Joe Orbin ("Orbin") had performed an oil change on his own vehicle. (Id. ¶ 196.)

Livingood, a tech III who worked with plaintiff at the auto center for a number of years, was surprised to hear in a meeting called by Angott, post-plaintiff's termination, about Angott's interpretation that defendant's "personal vehicle policy" prohibited an employee from working on an immediate family member's vehicle. (Id. ¶¶ 197-98.)

D'Agaro testified that she observed Craig and Livingood working on family members' vehicles. (Id. ¶ 257.) D'Agaro perceived Maksa was out to get rid of long term Sears' employees. (Id. ¶ 258.) D'Agaro was aware that plaintiff had approximately thirty years' service with defendant. (Id. ¶ 259.) D'Agaro and Livingood each testified that it was common knowledge ...

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