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Merrigan v. ARAMARK Services

September 18, 2009


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


Before the Court is Defendant ARAMARK Services, Inc.'s ("ARAMARK") Motion for Summary Judgment (Doc. No. 14), Plaintiff Bernadette Merrigan's Response in Opposition thereto (Doc. No. 15), and ARAMARK's Reply (Doc. No. 16.) For the following reasons, ARAMARK's Motion will granted.

I. Procedural History

On December 4, 2006, Plaintiff filed a Complaint against ARAMARK alleging that ARAMARK unlawfully terminated her employment because of her gender and race (Count I), subjected her to a sexually hostile atmosphere and sexual harassment (Count II), and retaliated against her when she complained about ARAMARK's allegedly unlawful employment practices (Count III). Plaintiff seeks relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). On January 4, 2007, ARAMARK filed an Answer to the Complaint. On November 8, 2007, ARAMARK filed a Motion for Summary Judgment on all three counts of the Complaint. On December 7, 2007, Plaintiff filed a Response in Opposition to ARAMARK's Motion. ARAMARK filed a Reply on December 21, 2007. This matter was reassigned to my docket on April 28, 2009.

On May 20, 2009, counsel for Plaintiff petitioned the Court for leave to withdraw as counsel of record, stating that she has been unable to locate Plaintiff.

II. Factual Allegations

The Court recites the facts as viewed in the light most favorable to Plaintiff.

From approximately October 6, 2002, to January 19, 2006, Plaintiff, a Caucasian woman, was employed by ARAMARK at its on-site dining operation at the NFL Films facility in Mount Laurel, New Jersey. (Def.'s Mem. in Supp. of Mot. For Summ. J. ("Def.'s Mem."), Ex. A, Dep. of Bernadette Merrigan ("Merrigan Dep.") 9, 12, 30.) Plaintiff was first employed by ARAMARK as a cashier but transferred to the position of "Deli worker/Prep cook" in October 2003. (Merrigan Dep. 30-33, 40.) In this capacity, Plaintiff prepared the deli counter, prepared the salad bar, and assisted with catering. (Merrigan Dep. 31.)

As a deli worker, Plaintiff was supervised by Executive Chef Nick Vaccaro, a Caucasian man. (Merrigan Dep. 40-42.) Plaintiff and Vaccaro reported to Food Service Director Christopher Husenica, a Caucasian man. (Merrigan Dep. 40-42; Def.'s Mem., Ex. B, Dep. of Christopher Husenica ("Husenica Dep.") 15-16.) Plaintiff's supervisors, Husenica and Vaccaro gave directions, assigned work and evaluated Plaintiff's performance. (Husenica Dep. 15-16; Def.'s Mem., Ex. C, Dep. of Nick Vaccaro ("Vaccaro Dep.") 10-11, 17.) Plaintiff's file contained two "write-ups": one from December 7, 2004, regarding proper sanitation and cleanup procedures at her deli station and another from August 16, 2005, regarding the need for Plaintiff to work more efficiently. (Pl.'s Resp. in Opp'n to Summ. J. ("Pl.'s Resp."), Ex. D., Dep. of Nick Vaccaro II ("Vaccaro Dep. II") 40-41.) In October 2005, after her evaluation showed that she had improved and increased production, Plaintiff was given the maximum raise plus an additional two percent. (Vaccaro Dep. II 63.)

Plaintiff's co-workers included two African American males: Jesse Copling, a grill cook, and Larry Hunter, a dish washer. (Merrigan Dep. 37-40.) Copling began working for ARAMARK in either 2004 or 2005. (Merrigan Dep. 37-38; Husenica Dep. 21-22.) Prior to September 5, 2005, Plaintiff had no problems with Copling, Hunter, or anyone else at the NFL Films location. (Merrigan Dep. 39-40, 43.) Plaintiff was friendly with Copling, took cigarette breaks with him, and sometimes gave him rides to work in the morning if she saw him walking from the bus stop. (Merrigan Dep. 38-39, 44; Husenica Dep. 42-43.)

On September 5, 2005, Plaintiff saw Copling walking to work and picked him up in her car. (Merrigan Dep. 44.) They drove to work together and went about their day as normal. (Merrigan Dep. 44.) At the end of the day, Copling told Plaintiff that he had left something in her car, so Plaintiff gave Copling her car keys so he could retrieve his property. (Merrigan Dep.

44.) Later that evening, when Plaintiff returned to her car to go home, she discovered that a ten-dollar bill was missing from her purse, which she had left in her car. (Merrigan Dep. 45.) When Plaintiff discovered that the money was missing, she immediately told Husenica, who was in the parking lot at the time. (Merrigan Dep. 45-46.) Husenica mentioned that Copling had been in Plaintiff's car that day, and said, "Well, I guess we both know where that money went." (Merrigan Dep. 46.) Husenica told Plaintiff that they would talk about the incident the next day, and that Plaintiff should not mention anything to anyone. (Merrigan Dep. 46.) Husenica later checked the surveillance tapes for September 5, 2005, and found that Plaintiff's car was out of view. (Husenica Dep. 45, 170-171, 177-78.) Husenica told Plaintiff that he would not accuse Copling of theft because he was not a police officer and that, if he accused Copling, he would have "a racial issue." (Pl.'s Resp., Ex. A, Deposition of Bernadette Merrigan II ("Merrigan Dep. II") 53.) According to ARAMARK's Employee Handbook, removal of property of another employee or a customer without permission may result in immediate discharge. (Def.'s Ex. I, ARAMARK Employee Handbook at NFL Films ("Employee Handbook") 16.) This provision applies when the theft is substantiated. (Pl.'s Resp., Ex. C, Dep. of Christopher Husenica II ("Husenica Dep. II") 109.) Husenica investigates accusations of theft when they occur in the building and on ARAMARK property. (Husenica Dep. II 109.) Husenica considered the September 5 incident not to be a work-related incident because, although the incident was on ARAMARK property, it was not in the building. (Husenica Dep. II 44.)

After the September 5 incident, Plaintiff stopped giving Copling rides to or from the bus stop and stopped speaking to him other than for work-related issues. (Merrigan Dep. 50-51.) Copling also treated Plaintiff differently after September 5, 2005. (Merrigan Dep. 51, 55, 60.) He stopped speaking to Plaintiff. (Husenica Dep. 58.) His demeanor and actions toward her changed, and the changes were evident on a daily basis. (Merrigan Dep. 55-56, 67.) They no longer helped each other out at work. (Merrigan Dep. 60, 64-65.) Copling stopped preparing certain food items for Plaintiff's station, so Plaintiff either had to prepare the food items herself or get help from the chef. (Merrigan Dep. 58-60.) Before the incident, Copling and Plaintiff would clean up their stations and put their materials on the same cart, but after the incident Copling made a point to return the cart to the dish room before Plaintiff could load her materials onto it. (Merrigan Dep. 60-61; Vaccaro Dep. 19-20.) The dish room was not far from Plaintiff's work area, but Plaintiff would have to get the cart herself or carry all of her materials. (Merrigan Dep. 61.) That could cause Plaintiff to spend up to an additional 10 minutes doing her job. (Merrigan Dep. 62-63.) After Plaintiff made allegations about the September 5 incident, Copling also put all of his clean-up materials away without leaving them out for Plaintiff, and the same thing happened in the morning. (Merrigan Dep. 61-62.) In addition, Copling told customers to "give [Plaintiff] a hard time." (Merrigan Dep. 62-64, 77-78, 117; Vaccaro Dep. 18-19.) On November 18, 2005, Copling used a cleaning solution called D-Lime,*fn1 which made Plaintiff physically sick. (Merrigan Dep. 64, 75-76.) Copling had been told by someone not to use this product once before. (Merrigan Dep. 74-77.)

Plaintiff never told Copling why she stopped socializing with him, but she believes that Husenica or Vaccarro told Copling that she had made an allegation about him stealing. (Merrigan Dep. 51, 55-56.) Plaintiff could think of no other reason why Copling's behavior toward her had changed. (Merrigan Dep. 56-57.)

Soon after the September 5 incident, Hunter's behavior toward Plaintiff also changed. (Merrigan Dep. 57.) Hunter was the dish washer at ARAMARK, and he was responsible for the pots. (Merrigan Dep. 63.) Plaintiff made a point to put her pots on a low rack, where she could reach them, but when she came into work in the morning she would find the pots were on a shelf too high for her to reach. (Merrigan Dep. 62-63; Vaccaro Dep. 18-19.) Hunter also gave Plaintiff threatening dirty looks that made her feel uncomfortable and unsafe, "like he was looking right through [her]." (Merrigan Dep. 71.) Both Copling and Hunter made "snide comments" at or about Plaintiff and gave her "threatening dirty looks." (Merrigan Dep. 71, 117-118, 247-248.) Plaintiff does not know why Hunter's behavior toward her changed. (Merrigan Dep. 57.)

After the September 5 incident, Plaintiff complained on numerous occasions to Husenica and/or Vaccaro about the problems she had with Copling and Hunter. (See, e.g., Merrigan Dep. II 72-73, 82, 87, 121, 123; Merrigan Dep II 164-65.) Plaintiff told Husenica and Vaccaro that she did not feel safe or comfortable working at ARAMARK and that she wanted them to do something about how Copling and Hunter were treating her. (Merrigan Dep. II 72-73, 82, 87, 121, 123; Husenica Dep. 194, 198.) When Plaintiff complained about the cart issue, Husenica spoke with Copling, who said that it would not happen again, and Husenica documented the meeting. (Merrigan Dep. 60-61, 86, 88; Vaccaro Dep. 19, 44; Husenica Dep. 85-88.) Vaccaro did not hear anything further from Plaintiff about disputes regarding the cart. (Vaccaro Dep. 20, 36-37, 44.) Plaintiff asked Vacarro to ask Hunter not to put the pots on the top shelf. (Vaccaro Dep. 18-19. See also Merrigan Dep. II 165-66.) Husenica and Vacarro instructed Hunter to ensure that Plaintiff's work materials remained on the middle shelf where Plaintiff could reach them. (Vaccaro Dep. 18-19, 37, 75; Merrigan Dep. 79-80, 82-83.) A week later, the pots were back on the top shelf. (Vaccaro Dep. 19.) When confronted, Hunter said he had forgotten. (Vaccaro Dep. 75.) Husenica then gave Hunter a written warning not to put the pots on the top shelf again. (Vaccaro Dep. 19.) After that, Vaccaro never noticed the pots out of place again, and Plaintiff's complaints about the pots stopped. (Vaccaro Dep. 19, 95-96.)

Husenica held a monthly staff meeting on November 7, 2005, to address customer service, the need for teamwork and to alleviate the tension among his employees, many of whom were not talking to one another. (Husenica Dep. 56-58; Merrigan Dep. 84, 88-89, 91-92, 128.) During the meeting, all employees signed a document acknowledging internal staff tensions that were affecting customer service. (Husenica Dep. 56; Def.'s Ex. D, Internal Issues Statement, Nov.7, 2005.)

On November 10, 2005, Husenica met with Plaintiff and Carol Hartman, another female ARAMARK employee, about their concerns about their safety due to Copling's words and behavior. (Merrigan Dep. 94-97; Husenica Dep. 81-82; Def.'s Ex. E, Husenica's Notes, Employee Meeting, Nov. 10, 2005 ("Mtg. Notes, Nov. 10, 2005.")*fn2 The women complained that Copling had given them intimidating and threatening looks and that he had jokingly said he would bring his "boys" and use knives to straighten out a situation with Hartman's boyfriend. (Mtg. Notes, Nov. 10, 2005; Merrigan Dep. II at 98-99.) The women also reported to Husenica that Copling had told customers not to eat the food prepared by the Chef because it was four weeks old, and that he would not eat the food himself. (Husenica Dep. 83, Mtg. Notes, Nov. 10, 2005; Merrigan Dep. II at 99.) Plaintiff also told Husenica that Copling was turning some customers away. (Merrigan Dep. II 102-03; Mtg. Notes, Nov. 10, 2005.) Husenica spoke with Copling about the complaints and documented the meeting in Copling's file. (Husenica Dep. 83, 85.)

November 11, 2005, Husenica met with Plaintiff and offered her a transfer to another ARAMARK account at Charming Shoppes in Bensalem, Pennsylvania. (Husenica Dep. 49-51, 67-69, 73; Merrigan Dep. 105-106; Def. Ex. G, Employee Meeting with Merrigan Notes, Nov. 11, 2005.) Plaintiff had requested that either she or Copling be transferred out of the NFL Films location because she could no longer work with Copling. (Husenica Dep. 50.) Husenica thought the Charming Shoppes position was a better fit for Plaintiff than for Copling, so he offered it to her first. (Husenica Dep. 53.) The Charming Shoppes location was only five minutes from Plaintiff's home. (Merrigan. Dep. 108-109.) Plaintiff did not accept the transfer because she believed the Charming Shoppes account might be lost by ARAMARK and had heard Vaccaro complaining about that account. (Merrigan Dep. II at 107-109.) Plaintiff was very upset about being offered the transfer. (Husenica Dep. 52.) After this meeting, Plaintiff said to Husenica, "I am so upset right now[.] I can't believe that you cannot provide a safe working environment for me and the rest of your staff. You know what, I'm done. I'm done with this. I'm taking matters into my own hands." (Husenica Dep. 73. See also Husenica Dep. 52, 70.) She then stormed out of Husenica's office. (Husenica Dep. 70, 73.)

After Plaintiff declined the Charming Shoppes transfer, Husenica offered the transfer to Copling, who had also asked for a transfer, but Copling declined because he had to rely on public transportation and he lived in southern New Jersey. (Husenica Dep. 51-53, 71, 191-192.) Copling did not react in an angry or upset ...

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