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Basiliko v. Vocelli Pizza

May 12, 2010


The opinion of the court was delivered by: David Stewart Cercone United States District Judge


On March 31, 2010, an order was entered granting defendant's motion for summary judgment in part and denying it in part. The motion was granted as to plaintiff's claim for retaliation under the Family and Medical Leave Act and plaintiff's claim for violations under the Pennsylvania Wage Payment and Collection Law. The motion was denied in all other aspects. This memorandum is issued in support of that order.

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to turn a blind eye" to the weight of the evidence).

The record as read in the light most favorable to plaintiff establishes the background set forth below. Plaintiff was hired by defendant, Vocelli Pizza, in January of 2005 as a "fast track" general manager. On April 4, 2005, plaintiff was promoted to general manager of the Vocelli store in Mt. Lebanon, Pennsylvania. Plaintiff worked as a general manager until September of 2005 when she was promoted to Director of Training. Because of personal reasons, plaintiff requested a demotion on January 23, 2006. Defendant approved the request and assigned plaintiff to the general manager position of the Scott Township store as well as the Corporate Training Manager for training franchisees.

Sometime in September of 2006, plaintiff was granted medical leave to undergo knee surgery. She also "borrowed" two vacation days from 2007 to be part of her leave. Plaintiff was on medical leave until October 31, 2006. During that time defendant transferred the franchise training duties to the Mt. Lebanon store. Defendant allegedly transferred these duties in response to declining sales at the Scott Township store. Specifically, sales revenue in 2006 dropped by 10% in comparison to 2005. The gross sales were also substantially lower than those at the Mt. Lebanon store.*fn1 When her leave ended, plaintiff returned to her previous general manager position with the same salary except for the $50 bonus awarded for each trained franchise.

After plaintiff returned to work, she met with Varol Ablak, an owner of defendant. Ablok introduced plaintiff to an attorney. During this introduction Ablak told the attorney that plaintiff used to be responsible for training franchisees before she went on leave under the Family and Medical Leave Act ("FMLA").

In January of 2007, plaintiff planned to take her assistant managers, Carrie Bethel and Chad Colvin, to dinner to celebrate the retirement of Rick Krouse, another Vocelli's employee. The dinner was to take place on January 18, 2007. Lisa Takash, an assistant manager from the Bethel Park store, was scheduled to work that night as an assistant manager for the Scott Township store. Jovon Belcher, a driver from another store, also was scheduled to work that night for the Scott Township store. In addition to Takash and Belcher, Colvin was scheduled as the opening driver and Bethel was scheduled as the opening manager. The schedule for that week was approved by the District Supervisor, Wes Hileman.*fn2

At about 3:00 p.m. on January18, 2007, Bethel left work to go to the dinner. Around that same time one of the drivers for the dinner shift called off. Colvin and Takash unsuccessfully attempted to find a replacement driver.*fn3 At 5:00 p.m., Colvin's shift ended and he left the store to attend the dinner. Subsequently, delivery delays began to accumulate, and Takash sent Bethal a text message requesting her help.*fn4 Takash did not receive a response from Bethel and decided to call Hileman. Hileman called Colvin and told him to return to work. Colvin informed plaintiff of the situation, and she told him to handle it and then come to dinner.

After talking to Colvin, plaintiff called Takash to discuss the situation. Takash stated that everything was fine and there were just some delivery delays. Plaintiff then told her to send Colvin to the dinner after things calmed down. Plaintiff further told Takash that Colvin would do his "cash out" after dinner.

Following the conversation between plaintiff and Takash, the situation at the store worsened. In response, Takash called Allen Caldwell, Hileman's direct supervisor. Caldwell called Hileman and Hileman in turn called plaintiff.

Plaintiff did not receive Hileman's call because his number was not programmed into her phone, but he left a message on her voicemail. Caldwell had instructed plaintiff to contact him with problems instead of Hileman. Caldwell made this offer because of plaintiff's past complaints against Hileman. At one point, plaintiff had even requested to be transferred from Hileman's supervision.

Plaintiff received the voicemail and called the store immediately.*fn5 Once again she spoke with Takash about the situation. According to plaintiff, Takash explained that the store was busy but everything essentially was fine. Plaintiff then called Caldwell and informed him that the problem was resolved. Later that night, Colvin returned to the store to cash out.

The next day (January 19, 2007), Caldwell told Dorothy Lyons, Director of Human Resources, and Hart Boesel, Director of Operations, about the situation. Lyons began an immediate investigation. During the next two days (Friday and Saturday, January 19 and 20, 2007) Lyons spoke with Hileman and Takash. She did not communicate with Colvin and ...

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