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Fayewicz v. Redner's Markets Inc.

April 23, 2010


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


Currently pending before the Court is a motion for summary judgment filed by Defendant Redner's Markets Inc. For the following reasons, the motion will be GRANTED.


Plaintiff, Sandra Fayewicz ("Plaintiff"), initiated this lawsuit against her former employer, Redner's Markets Inc. ("Redner's"), on June 9, 2009, alleging that her employment was terminated in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621 ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e), and the Pennsylvania Human Relations Act, 43 P. S. §955(a).

This matter initially was assigned to District Court Judge C. Darnell Jones, II, and on November 5, 2009, the parties consented to the exercise of jurisdiction by a United States Magistrate Judge under 28 U.S.C. 636(c) and Fed.R.Civ.P. 73. (Doc. No. 12). This matter was then referred to me by Judge Jones on November 10, 2009. (Doc. No. 13).Thereafter, on February 19, 2010, following completion of discovery, Defendant filed the instant Motion for Summary Judgment. (Doc. No. 21).

Defendant moves for summary judgment on the grounds that Plaintiff has failed to put forward a prima facie case of age discrimination, sex discrimination, or retaliation. See Defendant's Mot. for Summ. J. at 2. On February 25, 2010, Plaintiff filed its opposition to Defendant's motion and on April 8, 2010, I heard oral argument on Defendant's motion. Accordingly, this matter is now ripe for disposition.


Plaintiff is a 53 year old native of Reading, PA. Pl.'s Dep. at 13. Plaintiff began her employment with Defendant in March 1993, as a cashier. Id. at 14. She initially was hired to work at Defendant's store located on Carsonia Avenue; in 1995, she was promoted to Store Bookkeeper, for Defendant's Store 93 located in Reading, Pennsylvania. Plaintiff held this position until May 13, 2008, when Defendant terminated her employment. Pl.'s Dep. at 21-22. Plaintiff's direct supervisors at Store 93 were William Eshbach, Director of Store 93, and in his absence Tony Cavalieri (Manager), or Kyle Bowers (Grocery Manager). Pl.'s Dep. at 99, 122-23. Plaintiff also reported to Deb Lauer, Supervisor of Front End Operations for Defendant. Lauer is a corporate office employee who supervised all Bookkeepers at Defendant's stores.

Pl.'s Dep. at 64, 68-69, 71, 99, 107.

During Plaintiff's 15 years of full time employment with Defendant, she received positive employment reviews. Twice during her employment with Defendant, Plaintiff received an Employee of the Year Award, in 2002 and in 2007. Pl.'s Dep. at 55. Store Director Eshbach, who oversees day-to-day operations, Eshbach Dep. at 6-7, chose Plaintiff as Employee of the Year in 2007, Eshbach Dep. at 15-16, because he felt Plaintiff was a good employee who performed her job well. Eshbach Dep. at 18.

However, on May 14, 2008, Plaintiff was terminated from her position at Defendant's store.

A. The "Change" Incident

As noted, Plaintiff was terminated from Redner's on May 14, 2008, following a disagreement with a customer. That disagreement led to an incident involving Plaintiff and acting store manager, Kyle Bowers. For several months prior to May 2008, a man came in to Defendant's Store 93 on a regular basis bringing as much as $150.00 in paper money, and asking that the paper money be exchanged for coins. Pl.'s Dep. at 174-175. As Bookkeeper at Defendant's Store 93, Plaintiff was responsible for the change on hand at the store, so that when the man came into the store asking to change his paper currency, such requests were handled by Plaintiff. Prior to May 13, 2008, Plaintiff had advised Store Director Eshbach that this particular customer was coming into the store asking for a large amount of change. Eshbach Dep. at 20-21.

Defendant has no written policy dealing with customer requests to exchange paper money for coins, and Defendant's Director of Human Resources Robert McDonough testified that the verbal policy was left up to store management. McDonough Dep. at 35. Eshbachtestifiedthat he told Plaintiff to use her discretion as to whether to give the change to the customer, and if Plaintiff did not believe it was possible to make the change, for whatever reason, then the customer was to be informed that Plaintiff could not make the change. Eshbach Dep. at 21-22, Pl.'s Dep. at 178.

On May 12, 2008, the customer came into the store and asked for change. Plaintiff determined that she could not provide the change to the customer because she didn't have enough change on hand to service the store, given that she was not expecting a delivery of change for another day or two. Pl.'s Dep. at 158. Plaintiff testified that when she informed the customer that she was not able to make change for him, he began swearing at her in a loud voice. Pl.'s Dep. at 182. Plaintiff testified that the customer told her that he wasn't going to accept denial of his request, because he wasn't going to take that answer from a woman. Pl.'s Dep. at 182-183. The customer insisted that Plaintiff get someone above her. Id. Normally, Plaintiff would have referred the customer to Store Director Eshbach, but Eshbach was not in the store that day. Pl.'s Amended Complaint at 4. Plaintiff therefore requested that Kyle Bowers, the Grocery Manager serving as the manager on duty that day, speak with the customer. Id. Bowers took the man to the front of the store, spoke with him and ultimately made the decision to give the customer the change he was requesting. Id.; Pl.'s Dep. at 146.

It is undisputed that Plaintiff and Bowers then began to argue over whether Bowers should have given the customer change when Plaintiff had already told the customer that Redner's could not accommodate him on that day. Pl.'s Dep. at 146. Plaintiff testified that she said to Bowers, "Why did you give him that money? It's against our policy. I said no, and you gave it to him anyway." Pl.'s Dep. at 146. Plaintiff testified that she may have also said "Why the hell did you do that? You shouldn't have done it; that's against our policy." Pl.'s Dep. at 151. Plaintiff further testified that she "probably" referred to the customer asking for change as a "son of a bitch." Pl.'s Dep. at 153. Plaintiff contends that while her tone with Bowers was loud, she was not screaming or disrespectful. Pl.'s Dep. at 167.

Following the incident with Bowers, Plaintiff phoned Defendant's Director of Front End Operations, Deb Lauer. Pl.'s Dep. at 148. Plaintiff relayed to Lauer her dissatisfaction with the fact that Bowers had given the customer change after she had told the customer that the store could not make change for him. Id. Plaintiff testified that Lauer asked her to put Bowers on the phone so that Lauer could explain to him that "we don't sell change." Id at 149. Plaintiff testified that Lauer said to her "I know your angry with [Bowers] that he did this, I know we don't sell the change, calm down, I'm coming in [the store] tomorrow morning and me you and [Bowers] will talk about it. I told [Bowers] he shouldn't have done that." Id. at 150-51.

Lauer testified that she told Bowers that she understood that both he and Plaintiff were upset and that they should stay away from each other. Lauer Dep. at 14. Lauer also told Bowers that she would deal with the situation when she came into the store the following morning, but in the meantime "[Plaintiff] needs a break, just tell her to take a break." Id.

Plaintiff contends that this should have been the end of the incident, but "Bowers then decided to take the matter to another level when he spoke to VP of HR McDonough" about what had happened. Pl.'s Resp. to Mot. for Summ. J. at 8; Bowers' Dep. at 21. Bowers testified that he called McDonough because Plaintiff had threatened to have him fired for giving the customer change in violation of the store's change policy. Id. Bowers further testified that after relating his version of the incident to McDonough, McDonough told him to send Plaintiff home for the day until he could determine the appropriate course of action. Bowers' Dep. at 16. Bowers then told Plaintiff to "punch out for the day" and go home. Pl. 's Dep. at 139- 42. Plaintiff does not dispute that she was sent home for the day. Pl.'s Dep. at 141- 43.

McDonough testified that he made the decision to terminate Plaintiff based upon the conversation he had with Bowers on the day of the incident, and based upon the written statements of three employees of store 93 who were present in the store on the day of the incident.*fn1 McDonough Dep. at 5, 8, 17.

Deborah Wiley, Manager of Health and Beauty Aids, and General Merchandise stated:

I came into office (sic) to get an ordering gun & [Plaintiff] said to me, "you are taking your life into your own hands by coming in here." I asked why, and she said, "Didn't you hear me and [Bowers] yelling at each other?" I said, "No." I said to her that she'd better be careful how she talks or she'll get sent home. She said, "good." Then I started to leave the office. Before I left the office, she also said that she's gonna punch him [Bowers] in the face if he comes in the office again.

Statement of Deborah Wiley, Pl.'s Ex. "G".

Susan Snyder, Assistant to the Manager of Health and Beauty Aids and General Merchandise stated that "whoever [Plaintiff] was talking to on the phone after [Lauer], she said she just wanted to punch [Bowers] in the face." Statement of Susan Snyder, Pl.'s Ex. "H".

Megan Scheuring, Scanning Coordinator stated:

I walked past Kyle Bowers and the customer at register 2 or 3. I walked into the office to drop off a paper and asked [Plaintiff] what was going on. She told me that the customer comes in on a weekly basis looking to buy change from her and she's tired of it. [Plaintiff] said that she told the man before that we don't get deliveries of change until a Wednesday so the safe was empty. She then called the man something along the lines of a black son of a bitch. She then got on the phone with Deb Lauer and repeated the same thing. [Plaintiff] then ...

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