The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Plaintiff Emma Mason commenced this suit against her employer, Transportation Solutions, seeking redress for alleged retaliation and wrongful termination based on gender and age discrimination. Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, defendant's motion will be granted in part and denied in part. The motion will be granted as to plaintiff's age discrimination claim and denied in all other aspects.
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 on June 19, 2005 as a shuttle bus driver. Defendant is a transportation company with 112 employees, which contracts with UPMC to provide shuttle services for UPMC's employees from various parking lots to UPMC buildings. According to defendant's contract with UPMC, shuttle routes must be strictly followed to ensure the timely pick up of employees so they can report to work.
Plaintiff was fifty-three years of age at the time she was hired. Elnora Briston, a female then fifty-five years of age, hired plaintiff and was plaintiff's supervisor during her first year of employment. Plaintiff received five disciplinary warnings during the time she was under Briston's supervision. The first of these was a verbal warning on February 28, 2006. According to Briston's notes, security called Briston to report that plaintiff was smoking on her shuttle and was blocking the street in front of the hospital. Plaintiff admits that she received this verbal warning. On March 3, 2006, Briston issued a formal written warning to plaintiff after she was observed smoking on her shuttle by defendant's vice president. The warning also included allegations that plaintiff harassed another employee, which plaintiff denies doing.
Plaintiff received another written warning from Briston on April 11, 2006, for calling off at the last minute. Defendant requires employees to give at least two hours notice when calling off a scheduled work shift, and plaintiff had contacted Briston at 1:17 pm when her shift was due to begin at 2:00 pm.
Plaintiff received her last written warning from Briston on August 7, 2006 for excessive call offs. Plaintiff called off on Monday and Friday in the same week due to an aunt passing away, and then contacted Briston the night before a scheduled shift on the following Monday to tell her she was in New York to handle her deceased aunt's paperwork. Briston issued the final written warning because she "had to continually find coverage for [plaintiff's] shift without much notice." August 7, 2006, Written Warning to Emma Mason, Defendant's Exhibit J (Doc. No. 29-4) at 4.
In June of 2006, Ted Hill became Acting Supervisor and assumed the supervision of shuttle bus drivers, including plaintiff. Many drivers initially resisted Hill's method of supervision because he was stricter than past supervisors and "wrote up many employees." Defendant's Motion (Doc. No. 27) at ¶ 9. Defendant claims that the increase in write-ups was at the insistence of Dwight Mayo, the president of Transportation Solutions, because "he felt things had been lax for far too long." Id.
Over the course of five months Hill issued nine disciplinary warnings to plaintiff. Plaintiff was first disciplined by Hill on August 18, 2006 for taking a bus which she had not been given permission to drive. As a consequence plaintiff was issued a written warning for "being insubordinate." Plaintiff refused to sign the written warning and met with Hill and Mayo to explain that the allegations in the warning were false. Mayo assured plaintiff that if there were no more problems, the warning would be removed from her file. Hill also wrote plaintiff up several times for failing to follow company dress code. Plaintiff contests that she ever was actually out of uniform, and asserts that the few times she was, Briston gave her permission to do so. Phil Davis, a former manager for defendant, testified that plaintiff always was in proper uniform.
At the end of 2006, plaintiff was issued several more warnings from Hill for turning in an unverifiable excuse, failure to come to work, failure to call off and improperly parking a company vehicle. Hill also issued a warning to plaintiff for failing to attend a mandatory staff meeting. Plaintiff contends that she asked and received permission from Hill to miss the meeting because she had a personal matter to tend to that day, but Hill wrote her up for missing the meeting anyway.
Plaintiff complained to Briston about Hill's treatment sometime in January 2007. Testimony of Elnora Briston, Plaintiff's Exhibit 9 (Doc. No. 36-2) at 32. When she complained about Hill a second time, Briston instructed plaintiff to write her concerns in a statement. Plaintiff composed a memorandum, dated January 22, 2007, titled "Complaint of Harassment and Discrimination Against Mr. Ted Hill." Although plaintiff did not mention age or gender in the memo, she did mention that she was complaining about "repeated discrimination" and harassment, among other things. Plaintiff detailed how she was subject to unwarranted discipline by Hill and informed defendant that "if [she] was not satisfied with the remedy Transportation Solutions have put [sic] forward, [she would] submit [her] case to the EEOC." January 22, 2007 Memorandum by Emma Mason. Briston testified that she passed this statement on to Mayo. Mayo testified that he was aware at the time that the EEOC investigates charges of unlawful discrimination.
After he received the January memo, Mayo held a meeting with Hill and Briston to discuss plaintiff's problems with Hill and thereafter directed Briston to monitor plaintiff. Briston testified that Hill "backed off of Emma" at that point. Briston said she herself continued to have problems with plaintiff after she again became plaintiff's supervisor, but defendant's records show that plaintiff did not receive any disciplinary warnings from December 11, 2006 until defendant terminated her in June 2007.
The record shows that Hill regained supervisory control over plaintiff sometime in May 2007 when Briston was promoted. Briston testified that plaintiff continued to take too long at certain stops, bypass some stops, take unauthorized roads and deviate from her route. In an effort to remedy the route deviation problem, Hill testified that he rode with plaintiff to "retrain" her on her route in early June 2007.
Hill testified that on June 12, 2007, plaintiff sat at the Children's Hospital route and let her bus completely fill with customers. Because her bus was filled, she was unable to stop along the route and pick up additional passengers. When Hill questioned plaintiff about deviating from her route, he claims plaintiff slammed the door in his face and drove away. Plaintiff contends that she did not do this, and that, in any ...