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Seiple v. Friendly Ice Cream Corp.

August 31, 2009


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



Plaintiff, David Seiple, initiated the instant lawsuit in response to his termination from his position as District Manager with Friendly Ice Cream Corporation. In his Complaint, plaintiff alleges that his termination was motivated by reverse sex discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII").

Presently before the Court is defendant's Motion for Summary Judgment. For the reasons that follow, the Court grants defendant's Motion for Summary Judgment and enters judgment in favor of defendant on the single claim-reverse sex discrimination-alleged in the Complaint.


At all times relevant to this litigation, plaintiff, David Seiple, was District Manager with defendant Friendly Ice Cream Corporation ("Friendly's" or "defendant"), a position he obtained in September 2004. (Seiple Dep. 61:2--25, 83:2--14, Feb. 9, 2009, Ex. 1 to Pl.'s Resp.) By January 2007, plaintiff was, as far as he knew, the highest-paid District Manager employed by Friendly's. (Id. at 105:13--16, 118:17--119:17; Gus DiGiovanni Dep. 70:16--71:17, Feb. 25, 2009, Ex. 4 to Pl.'s Resp.) Plaintiff's supervisor, Gus DiGiovanni, the Regional Director for plaintiff's district, mentioned to plaintiff that as he was a leading District Manager, more was expected of him, but plaintiff "never really took that to heart." (Seiple Dep. 105:17--106:9.) As a leading District Manager, plaintiff was responsible for ten restaurants, including the Fort Washington restaurant. (Id. at 266:7--15.)

On November 28, 2007, the Board of Health ("BOH") visited the Fort Washington restaurant for an inspection. (Id. at 144:4--145:7, 146:2--5.) The BOH identified problems with the restaurant's fountain area. (Id. at 146:19--24.) At that time, plaintiff was on vacation and was not present at the Fort Washington restaurant. (Id. at 144:4--8, 145:13--17.) The General Manager, Colleen Penot, was present during the BOH inspection. (Id. at 146:14--147:2.) As plaintiff was on vacation, Penot contacted Marie Kwiatkowski, the District Manager who was covering for plaintiff while he was away. (Id. 145:13--17, 146:21--147:12; Kwiatkowski Dep. 92:5--93:21, Feb. 25, 2009, Ex. 3 to Pl.'s Resp.) The parties dispute exactly what was required following the BOH inspection-whether the restaurant could be closed for just a few hours to clean the fountain area or whether a longer closure and more extensive cleaning were necessary. In any event, the parties agree that the BOH inspector told Penot to close the restaurant for at least a few hours to clean up the fountain area. (Seiple Dep. 153:25--154:17, 155:9--156:21; 157:18--159:11, 161:12--19; 162:21--163:7.) Kwiatkowski closed the restaurant for the rest of the day and scheduled a BOH reinspection for the following day. (Id. at 146:24--147:16, 155:9--157:9, 159:18--162:3.) That evening, Seiple returned from vacation and went to the Fort Washington restaurant to help clean. (Id. at 166:23--168:22.) The next day, November 29, 2007, the restaurant passed the BOH reinspection. (Id. at 169:24--170:6.)

On November 30, 2007, Lionel Bisson, an employee of defendant, conducted an unannounced internal inspection of the Fort Washington restaurant; such inspections are known as "RJH inspections." (Id. at 171:6--174:6.) The following day, Bisson sent an email to plaintiff, DiGiovanni, and Donna Cummings, defendant's Manager of Quality Assurance. (Email from Bisson to Seiple, DiGiovanni, and Cummings, Dec. 1, 2007, Ex. G to Friendly Ice Cream Corporation's Statement of Undisputed Facts in Support of Defendant's Motion for Summary Judgment ("Friendly's Statement of Undisputed Facts").) The email stated that "[t]he results [of the RJH inspection] were very disappointing. . . . Had I been the BOH, I would have closed this restaurant." (Id.) The email contained a two-page list of problems at the restaurant. (Id.)

The same day, December 1, 2007, DiGiovanni wrote an email to plaintiff regarding both the BOH inspection and Bisson's RJH inspection. (Seiple Dep. 177:7--180:13.) The email read as follows:

Dave, I am really disappointed and concerned about Lionel's inspection. The restaurant was closed two days prior and we have made zero improvements in this restaurant after all the hard work everyone did to get this store re-opened. On Wednesday December 5, I would like to meet you at the store along with Jesse [Nieblas]. Dave, I need you to work in this store starting Monday for the entire week. I need you as the DM [District Manager] to show the management team how serious this situation is. What I need from you and the management team is a written game plan to fix and prevent this from ever happening again. A plan that covers daily, weekly and monthly.

Dave what I need from you is your management team in this store. We can't operate with Shift Supervisors in this restaurant. I would advise you that you . . . do whatever you have to do in order to fix this once and for all. Look at your District and talk to me on Wednesday about your team in this store. The issues on Lionel's inspection are 100% daily operating procedures that are taken care of everyday. We need to submit to the Health department our action plan to improve and maintain.

Dave, I can't stress enough how critical this situation is. Don't take this situation lightly. You need to utilize all your resources to fix this problem. Be prepared to discuss in detail you[r] plan. (Email from DiGiovanni to Seiple, Dec. 1, 2007, Ex. J to Friendly's Statement of Undisputed Facts.)

On December 5, 2007, plaintiff met with DiGiovanni, Bisson, and Human Resource Manager Jesse Nieblas at the Fort Washington restaurant. (Seiple Dep. 219:23--220:3.) Plaintiff was asked about "the history of everything that was going on in the [Fort Washington restaurant] . . . ." (Id. at 220:9--15.) They also discussed the pending termination of Penot, the Fort Washington General Manager, and other human resources issues. (Id. at 220:16--221:25.) The discussion was "[s]oup to nuts, Fort Washington." (Id. at 222:11.) Seiple presented two documents at the meeting-a "Restaurant Action Plan" dated November 30, 2007 and a "Quality Assurance Program Follow-Up Plan" dated November 15, 2007. (Id. at 225:7--253:12; Restaurant Action Plan, Nov. 30, 2007, Ex. H to Friendly's Statement of Undisputed Facts; Quality Assurance Follow-Up Plan, Nov. 15, 2007, Ex. 8 to Seiple Dep.) The Restaurant Action Plan was a one-page document listing five items to be corrected; plaintiff admitted at his deposition that this was not a formal, detailed, written plan. (Restaurant Action Plan; Seiple Dep. 306:16--307:10.) DiGiovanni, Bisson, and Nieblas all testified that plaintiff did not provide the kind of action plan that was requested or expected. (DiGiovanni Dep. 35:15--36:2, 37:1--7; Lionel Bisson Dep. 33:3--34:6, Feb. 25, 2009, Ex. D to Friendly's Statement of Undisputed Facts; Jesse Nieblas Dep. 14:11--17, Feb. 25, 2009, Ex. E to Friendly's Statement of Undisputed Facts.) DiGiovanni testified that "to be honest with you, we were just kind of baffled that day when we sat down and we met [plaintiff] and [plaintiff] had no action plan." (DiGiovanni Dep. 35:19--21.)

After the December 5, 2007 meeting, DiGiovanni decided to terminate plaintiff. (Id. at 4:22--5:13.) At a meeting on December 6, 2007, DiGiovanni terminated Penot and then terminated plaintiff. (Seiple Dep. 308:14--316:24.) DiGiovanni testified that"the only reason why [plaintiff] was terminated was because he didn't have [an action] plan." (DiGiovanni Dep. 30:12--13.) DiGiovanni elaborated on the reason for plaintiff's termination as follows:

I terminated [plaintiff] because of a failure to have an action plan to me in reference to what we were going to do in order to maintain that restaurant moving forward, after I personally met with the health inspector the day that we reopened, in which he [listed what he] was looking for, as far ...

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