The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
On December 7, 2007, plaintiff, Mary Baier, instituted this civil action against defendant, Jersey Shore State Bank ("JSSB" or the "Bank"). (Rec. Doc. No. 1). Baier later filed an amended complaint on August 19, 2008, setting forth a claim pursuant to the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). (Rec. Doc. No. 14). In her one-part amended complaint, plaintiff contends that JSSB actively retaliated against her for engaging in a protected activity, culminating in her dismissal from JSSB.
Defendant asserts, inter alia, that plaintiff fails to establish a prima facie case of retaliation, and that, even if she did, defendant has refuted the prima facie case with a non-pretextual, legitimate, non-discriminatory explanation for its action. In addition, JSSB asserts counterclaims against plaintiff, contending that plaintiff breached a common law duty of confidentiality and loyalty, engaged in unfair competition with her employer, was unjustly enriched at JSSB's expense and tortiously interfered with the possible contractual relationships between JSSB and prospective clients. (Rec. Doc. No. 12).
The parties have completed discovery. On April 14, 2009, defendant filed its motion for summary judgment, (Rec. Doc. No. 24), accompanied by a statement of material facts ("SMF") (Rec. Doc. No. 25) and a supporting brief. (Rec. Doc. No. 26). Opposing, (Rec. Doc. No. 31),*fn1 and reply briefs, (Rec. Doc. No. 37), have been timely filed and plaintiff filed an answer to defendant's statement of facts (Rec. Doc. No. 32). The matter is ripe for disposition. In response to plaintiff's SMF, defendant filed a motion to admit defendant's SMF or strike portions of plaintiff's SMF.*fn2 (Rec. Doc. No. 38). The appropriate briefs were timely filed. See (Rec. Doc. No. 39; Rec. Doc. No. 44; Rec. Doc. No. 46). For the following reasons, we will grant defendant's motion for summary judgment in part and deny defendant's motion in part. Defendant's motion to admit defendant's SMF or strike portions of plaintiff's SMF will be denied.
Defendant's two outstanding motions in limine (Rec. Docs. Nos. 35 and 40) will be ruled upon in separate orders.
It is appropriate for a court to grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those which might affect the outcome of the suit. Id.; Justofin v. Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004).
"If the nonmoving party has the burden of persuasion at trial, 'the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.'" Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When the moving party bears the burden of persuasion at trial, it must point to evidence in the record that supports its version of all material facts and demonstrate an absence of material facts to the contrary. National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). If the moving party does not meet this burden, the court must deny summary judgment even if the nonmoving party does not produce any opposing evidence. Id.
In evaluating a motion for summary judgment the court will draw all reasonable inferences from the evidence in the record in favor of the nonmoving party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, 578 (3d Cir. 1995). The nonmoving party, however, cannot defeat a motion for summary judgment by merely offering general denials, vague allegations, or conclusory statements; rather the party must point to specific evidence in the record that demonstrates that there is a genuine issue as to a material fact. See Celotex, 477 U.S. at 321; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).
Plaintiff is a woman who began working for the defendant on or about December 9, 1974. (Rec. Doc. No. 14, p. 2, ¶ 10; Rec. Doc. No. 25, p. 2, ¶ 2). Baier's employment with JSSB came to a conclusion in December 2006. (Rec. Doc. No. 25, p.2, ¶ 3). At different times during her employment, Baier served as an Assistant Branch Manager, Individual Retirement Accounts ("IRA")
Coordinator, Licensed Insurance Representative and Lead Teller and Customer Service Representative. (Rec. Doc. No. 25, pp. 2-3, ¶¶ 3-8; Rec. Doc. No. 32, pp. 1-2, ¶¶ 3-8).
As a condition of employment, on a yearly basis Baier reviewed and signed a statement that she understood and would abide by JSSB's Code of Corporate Conduct and Conflict of Interest policies. (Rec. Doc. No. 25, pp. 3-4, ¶¶ 12, 15; Rec. Doc. No. 32, p. 2, ¶¶ 12, 15). According to the Code of Corporate Conduct, employees were considered representatives of the bank when dealing with external organizations, (Rec. Doc. 33-8, p. 2), and were to, inter alia, avoid situations in which their personal interests and the interests of the bank would conflict. (Rec. Doc. No. 25, p. 3, ¶ 13; Rec. Doc. No. 32, p. 2, ¶ 13). JSSB's interests and those of its shareholders took precedence over an employee's private interests and the employee was to act in the best interests of the bank when dealing with current or potential customers. (Rec. Doc. 33-8, p. 3). Similarly, the Conflict of Interest Policy noted that employees should "avoid situations that create an actual or perceived conflict between their personal interests and those of the organization." (Rec. Doc. No. 33-9, p. 2.). Although employees could have outside business interests under this policy, they were barred from engaging in activities that would bring them in competition with JSSB or adversely affect the organization or the employee's job performance. (Rec. Doc. No. 25, p. 4, ¶ 14; Rec. Doc. No. 32, p. 2, ¶ 14, Rec. Doc. No. 33-9, p. 2). Employees were also prohibited from using "proprietary and/or confidential information for personal gain or to the organization's detriment, nor may they use assets or labor for personal use." (Rec. Doc. No. 33-9, p. 2). JSSB, who possessed the sole discretion to determine if a conflict existed under the policy, could ask the employee to resign if it determined the conflict was severe enough. (Id. at pp. 2-3).
On or about May 8, 2001, Baier attended a Limestone Township zoning meeting wherein she protested the proposed residential development advanced by one of JSSB's customers. (Rec. Doc. No. 25, p. 4, ¶ 16; Rec. Doc. No. 32, p. 2, ¶ 16). On or about May 15, 2001, when JSSB's management became aware of the incident, Baier was told that she should refrain from such activities. (Rec. Doc. No. 32, p. 2, ¶ 18); see (Rec. Doc. No. 27-6, p. 2). Baier met with JSSB's Vice President of Branch Operations, Robert Glunk, and JSSB's Human Resources Director, JoAnn DiPasquale, on May 21, 2001, to discuss JSSB's and Baier's positions on the Limestone Township issue. (Rec. Doc. No. 25, p. 5, ¶ 19; Rec. Doc. No. 32, p. 2, ¶ 19; Rec. Doc. No. 27-6, p. 2). JSSB reiterated its previously articulated position at that time. (Rec. Doc. No. 32, p. 3, ¶ 20). However, Baier was not disciplined for her conduct.*fn3 (Rec. Doc. 25, p. 5, ¶ 21; Rec. Doc. 32, p. 3, ¶ 21).
On or about October 21, 2003, Baier was admonished for violating bank policy after she transferred money out of her sister's account, (Rec. Doc. No. 25, p. 5, ¶¶ 22-23; Rec. Doc. No. 32, p. 3, ¶¶ 22-24), and a written reprimand was placed in Baier's employment file. (Rec. Doc. No. 32, p. 3, ¶ 25).
On or about January 5, 2006, Baier notified JSSB President Ronald Walko that she was concerned she was being discriminated against by the Bank on the basis of age, gender and disability, and that she intended to file a complaint with the Equal Employment Opportunity Commission ("EEOC"). (Rec. Doc. No. 25, p. 14, ¶ 95; Rec. Doc. No. 32, p. 11, ¶ 95). Several weeks later, on or about January 23, 2006, Baier informed JSSB that she would begin a home-based title and licensure-related business. (Rec. Doc. No. 25, p. 6, ¶ 28; Rec. Doc. No. 32, p. 3, ¶ 28). Baier also indicated that she would provide financial, tax and notary services to her clients. (Rec. Doc. No. 25, p. 6, ¶ 28; Rec. Doc. No. 32, p. 3, ¶ 28). Although the notary designation and the powers thereto belong to the individual, Baier was advised that JSSB did not intend for its notaries to sell services to outside customers. (Rec. Doc. No. 25, p. 7, ¶ 38; Rec. Doc. No. 32, p. 4, ¶ 38). Walko also noted that Baier should reread the Code of Corporate Conduct and Conflict of Interest policies and reconsider their applicability to Baier's business and suggested that JSSB would further investigate her personal business as a possible conflict of interest. See (Rec. Doc. No. 27-3, pp. 20-21; Rec. Doc. No. 27-5, pp. 6-10; Rec. Doc. No. 33-12, p. 2). Baier purported that all financial service customers were signing letters confirming they were not solicited at the Bank. (Rec. Doc. No. 25, p. 6, ¶ 31; Rec. Doc. No. 32, p. 4, ¶ 31). This assurance was never fulfilled. (Rec. Doc. No. 27-3, pp. 36-37). However, at that time, Baier was not disciplined, demoted or prevented from engaging in her personal business by JSSB. (Rec. Doc. 25, p. 8, ¶¶ 40-42; Rec. Doc. No. 32, p. 5, ¶¶ 40-42).
On or about March 21, 2006, Baier retained counsel to assist in her filing charges with the EEOC, (Rec. Doc. No. 25, p. 15, ¶ 98; Rec. Doc. No. 32, p. 11, ¶ 98). In or around this time, Baier reinstated her insurance sales license with a broker that was not associated with the Bank. (Rec. Doc. No. 25, p. 8, ¶ 44; Rec. Doc. No. 32, p. 6, ¶ 44). Soon thereafter, on April 10, 2006, Baier filed a complaint with the EEOC charging the JSSB with discriminating against her on the basis of wages, sex and age and that she was experiencing an ongoing pattern of retaliation. (Rec. Doc. No. 25, p. 15, ¶¶ 99-100; Rec. Doc. No. 32, p. 11, ¶¶ 99- 100; Rec. Doc. No. 33-10, p. 2-20). A Notice of Right to Sue was issued by the EEOC on September 14, 2007. (Rec. Doc. No. 25, p. 15, ¶ 102; Rec. Doc. No. 32, p. 11, ¶ 102).
On or about May 5, 2006, the Bank's security officer questioned Baier regarding suspicious activity on a customer's account. (Rec. Doc. No. 25, p. 11, ¶ 67; Rec. Doc. No. 32, p. 8, ¶ 67). Baier altered the customer's account information, supplanting the customer's address with her own. (Rec. Doc. No. 25, p. 11, ¶ 68; Rec. Doc. No. 32, p. 8 ¶ 68). Baier contended that she changed the address because the customer was involved in divorce proceedings and needed the statements delivered elsewhere. (Rec. Doc. No. 25, p. 11, ¶ 70; Rec. Doc. No. 32, p. 8, ¶ 70). Baier was not disciplined for this conduct. (Rec. Doc. No. 25, p. 11, ¶ 73; Rec. Doc. No. 32, p. 8, ¶ 73).
At or around this time, it was brought to JSSB's attention that Baier had installed a sign in front of her home advertising Nippenose Valley Financial Services ("NVFS"). (Rec. Doc. No. 25, p. 8, ¶ 45; Rec. Doc. No. 32, p. 6, ¶ 45). The sign stated that Baier offered mutual fund, 401(k), IRA, pension, annuities, health and life insurance and other financial services, in direct competition with the Bank. (Rec. Doc. No. 25, p. 8, ¶ 46; Rec. Doc. No. 32, p. 6, ¶ 46). The Bank subsequently hired an investigator, Charles Duchman, to obtain information regarding whether Baier was competing with the Bank. (Rec. Doc. No. 25, p. 9, ¶ 50).
On August 9, 2006, Duchman called the telephone number Baier listed on the sign and left a message. (Id. at p. 9, ¶ 53; Rec. Doc. No. 32, p. 6, ¶ 53). Baier returned his call that evening, requesting that Duchman call her back during business hours at the JSSB Montgomery Branch. (Rec. Doc. No. 25, p. 9, ¶ 54; Rec. Doc. No. 32, p. 6, ¶ 54). The next day, Duchman called Baier at work to inquire about the financial services she could provide regarding funds he previously invested in an annuity and mutual fund portfolio. (Rec. Doc. No. 25, p. 10, ¶ 55; Rec. Doc. No. 32, p. 6, ¶ 55). On August 21, 2006, Baier visited Duchman at his home with George Albertson, one of JSSB's competitors, to review Duchman's investment portfolio. (Rec. Doc. No. 25, p. 10, ¶ 58). Prior to this point, Baier never suggested that Duchman use JSSB's financial services, nor did she refer him to any of the Bank's financial services representatives. (Rec. Doc. No. 25, p. 10, ¶¶ 57, 59, 61; Rec. Doc. No. 32, pp. 6-7, ¶¶ 57, 59, 61).
It was around this time that Baier's medical status required her to reduce her hours to twenty per week. (Rec. Doc. No. 32, p. 8, ¶ 74). And, on or about November 27, 2006, Baier, unaware that Glenda Nelson was the secretary to one of JSSB's Board Members, (Rec. Doc. No. 27-8, p. 24), sent Nelson a note stating that she would "be leaving the Bank after 31 years." (Rec. Doc. No. 25, p. 10, ¶ 63; Rec. Doc. No. 32, p. 7, ¶ 63; Rec. Doc. No. 33-15, p. 2). She further stated that she was starting her own business and included a business card for NVFS. (Rec. Doc. No. 33-15, p. 2). To this end, she later marketed services to Kenneth Ertel with Albertson's assistance, though she recognized that JSSB had products, services and representatives which could address Ertel's needs. (Rec. Doc. No. 27-3, p. 34-36).
Shortly after Nelson received Baier's note, the note was transmitted to Walko through JSSB's counsel. (Rec. Doc. No. 25, p. 12, ¶ 80). In response to this note, JSSB's counsel contacted Baier's counsel, via a letter dated November 27, 2009, to notify her that JSSB accepted Baier's resignation, (Rec. Doc. No. 33-14, p. 9), and, sometime later in December 2006, JSSB's counsel advised Walko that Baier was resigning. (Rec. Doc. No. 25, p. 12, ¶ 77). Baier's counsel believed, but did not specifically recall, that she responded to JSSB's counsel's letter in order to quash the belief that Baier was resigning. (Rec. Doc. No. 33-6, pp. 18-22).
On or about December 13, 2006, Baier, with her counsel's assistance, prepared a letter to Walko stating that she was tendering her resignation effective December 15, 2006, because she could no longer work for the Bank as a result of perceived discrimination. (Rec. Doc. No. 25, p. 12, ¶¶ 78-79; Rec. Doc. No. 25, p. 9, ¶¶ 78-79). The letter, however, was never delivered. (Rec. Doc. No. 32, p. 9, ¶ 79). That same day, both counsel discussed Baier's situation via telephone. (Rec. Doc. No. 25, p. 13, ¶ 85; Rec. Doc. No. 32, p. 9, ¶ 85). The following day, JSSB's counsel faxed Baier's counsel a letter referencing the telephone conversation of December 13, 2006 and noting that Baier's last day of employment, as a result of her "voluntary resignation," would be December 23, 2006. (Rec. Doc. 33-14, p. 11). Baier's counsel responded the same day, thanking JSSB's counsel for his letter and stating that it was Baier's "preference not to continue to go to the bank . . . ." (Id. at p. 10). However, she indicates that these communications were part of an attempt to settle the case as a whole, and that Baier never intended to resign from JSSB and such intent could not be gleaned from the settlement discussions. (Rec. Doc. No. 33-6, pp. 30-40).
III. Plaintiff's Retaliation Claim
Defendant contends that summary judgment should be granted regarding Baier's retaliation claim because she failed to exhaust her administrative remedies as to this claim. JSSB argues that the administrative remedies were not exhausted because the allegations Baier filed with the EEOC did not include an allegation that JSSB terminated her employment in retaliation for her complaints of discrimination.
In response, plaintiff claims that she appropriately covered the alleged retaliation in question by charging JSSB with an ongoing pattern of retaliation and indicated, in a questionnaire filed in February 2007, that the pattern of retaliation ...