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Lazzaro v. Rite Aid Corp.

August 17, 2010




Before the Court is defendants‟ Motion for Summary Judgment filed pursuant to Fed. R. Civ. P. 56 (Doc. No. 28). Plaintiff, Joann Lazzaro, sued defendants under Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000(e) et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. § 951 et seq., alleging that the defendants intentionally discriminated against her based on her age and gender by terminating her from her position as Rite Aid Store Manager at the Wilkinsburg location on June 3, 2008. (Doc. No. 5 at ¶ 11). In her Amended Complaint, plaintiff contended that defendants‟ reasons for terminating her are pretextual, or otherwise indicative of a discriminatory animus.

Conversely, defendants claim that plaintiff was terminated because she allowed persons who were not Rite Aid employees to work at a Rite Aid store; thereby terminating her for cause (i.e., violating a company policy) and not merely pretext. Defendants also assert that they are entitled to judgment as a matter of law with respect to plaintiff‟s claim for punitive damages. Finally, defendants contend that Rite Aid Corporation and Rite Aid of PA, Inc., cannot be held liable because they were not plaintiff‟s employer. Plaintiff disagrees with all three contentions, and urges the Court to find that there is a genuine issue of material fact.

For reasons set forth in greater detail below, this Court will deny defendants‟ Motion for Summary Judgment.


The following facts are not contested unless otherwise indicated.

Defendants or their predecessors employed plaintiff for thirty-six (36) consecutive years, beginning on June 20, 1972. Doc. No. 5 at ¶ 4. In June of 2007, she began working as a store manager with Rite Aid after Rite Aid acquired Brooks/Eckerd stores. Id. at ¶ 11. After her former Brooks/Eckerd store closed in October of 2007, plaintiff was transferred as Store Manager to Store #10935 ("Wilkinsburg Store") located in Wilkinsburg, Pennsylvania. Doc. No. 37 at ¶ 23.

In February of 2008, Jeff Suriano became plaintiff‟s supervisor when he became the District Manager responsible for the Wilkinsburg Store. Id. at ¶ 25. During Mr. Suriano‟s first visit to the Wilkinsburg Store in February of 2008, he commented that he thought she was retiring, noting that she had worked there for 30 years. Id. at ¶ 26. Plaintiff corrected him noting it would be 36 years in June. Id. Mr. Suriano commented "that‟s almost as long as I have been born." Id. Mr. Suriano further mentioned that he "swore he heard that she was retiring" on at least two other occasions subsequent to that encounter. Id. at ¶ 28; see also, Defendant‟s Brief in Support of Motion for Summary Judgment, Doc. No. 31 at p. 8. Additionally, Mr. Suriano used the "F-word" in plaintiff‟s presence in a non-sexual way and in the presence of others, both men and women.

Id. at ¶¶ 29-30.

On March 24, 2008, five plaintiff‟s family members, none of whom were employees of defendants, assisted plaintiff by helping to prepare the store for its upcoming inventory. Id. at ¶¶ 35, 38. Plaintiff claims she admitted these facts to Mr. Suriano, who said he would "look the other way this time." Id. at ¶¶ 38-9. Although defendants accept plaintiff‟s recount of the events of March 24, 2008 as true for summary judgment purposes only, Mr. Suriano denies that he had any conversations with plaintiff on March 24, 2008 regarding her family working in the Wilkinsburg Store. Id. at ¶ 36, n. 2. It is not disputed that plaintiff‟s family members did not undergo Rite Aid‟s applicant/employee hiring and screening process or otherwise recorded their time working at the Wilkinsburg Store. Id. at ¶ 32.

On March 25, 2008, Mr. Suriano gave plaintiff a "Written Notice Form" as a result of the Wilkinsburg Store‟s poor performance on its inventory. Id. at ¶ 41. On May 5, 2008, plaintiff met with Mr. Suriano and Lynne Shawley, Rite Aid‟s Human Resources Manager, regarding her poor inventory performance and attendance. Id. at ¶ 46. During this meeting, Mr. Suriano raised the concern that plaintiff‟s family members worked at the Wilkinsburg Store on March 24, 2008 to prepare for inventory. Id. at ¶ 47. Plaintiff admitted to having her family members perform work at the Wilkinsburg Store, but claimed that Mr. Suriano knew of this fact, and had been on the phone with plaintiff while her family members were working at the store. Id. at ¶¶ 48, 49. Mr. Suriano denied having any knowledge of plaintiff‟s family members performing work on March 24, 2008 but admitted he learned of it later. Id. at ¶ 50. Ms. Shawley also relayed to plaintiff that "your people say your [sic] always complaining about aches and pains" and "your people said that you were very slow to catch on to the new Rite Aid system." Id. at ¶ 51. Ms. Shawley did not discipline plaintiff or Mr. Suriano at the May 5, 2008 meeting, but instead, informed plaintiff that she would conduct an investigation regarding the extent to which plaintiff‟s family members were performing work at the Wilkinsburg Store.*fn1 Id. at ¶ 55.

After presenting plaintiff with the allegations of her apparent misconduct, Ms. Shawley requested that plaintiff write down who worked at the store and for how long. Id. at ¶¶ 61, 63. Plaintiff then provided a written statement wherein she approximated the amount of time her family members worked at the Wilkinsburg Store on March 24, 2008. Id. at ¶ 64. Ms. Shawley then suspended plaintiff for her alleged misconduct. Id. at ¶ 65. Ms. Shawley did not discipline Mr. Suriano for his alleged knowledge of plaintiff‟s family members working in the Wilkinsburg Store. Id. at ¶ 140.

On June 2, 2008, Ms. Shawley submitted a request for plaintiff‟s termination to Dennis Palko, Senior Human Resources Manager. Id. at ¶ 67. Mr. Palko forwarded the termination recommendation to Michelle Stahl, the Senior Divisional Human Resources Director, requesting her approval for plaintiff‟s termination.*fn2 Id. at ¶ 68. Ms. Stahl consulted with Matthew Miles, Divisional Vice President, who approved plaintiff‟s termination for her alleged misconduct. Id. at ¶ 71. At the instruction of Ms. Shawley, Mr. Suriano then called Plaintiff on June 3, 2008 to inform her that she had been terminated. Id. at ¶ 72.

Rite Aid transferred 25-year-old Dan Czerpak to the Wilkinsburg Store to fill the store manager position vacancy. (Id. at ¶ 74). Subsequent to plaintiff‟s termination, defendant has terminated at least four other persons, George Delmont (45), Sean Sanders (37), Vera Matey (55) and Sandy Vesco (47) who were employed asstore managers, for permitting individuals who were not employed by Rite Aid to perform work at their respective stores. Id. at ¶¶78-100. Mr. Delmont was replaced by Steven Thomasulo (27), Mr. Sanders was replaced by Monica Bender (24), Ms. Matey was replaced by Alexander Munn (34), and Ms. Vesco was replaced by Maira Herre (57). Id. at ¶¶ 85, 90, 95, 100. All terminations occurred after plaintiff filed her Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on November 21, 2008. Id. at ¶ 170.

Defendant maintains an employee handbook known as its "Associate Atlas." Id. at ¶ 5. The Associate Atlas contains defendant‟s Equal Employment Opportunity Policy, Nondiscrimination Policy, Harassment in the Workplace Policy, and Anti-Retaliation Policy, as well as an Open Door Communication Policy and an Associate Complaint Resolution Procedure. Id. at ¶¶ 6-7. Defendants regularly train managers and supervisors on these policies. Id. at ¶ 9. Defendant‟s Nondiscrimination Policy was posted in the Wilkinsburg Store. Id. at ¶ 8.

Plaintiff‟s date of birth is July 20, 1952 and she was 55 years old on the date of her termination. Id. at ¶ 10. During her 36 years of employment, defendants or their predecessors never disciplined plaintiff, or warned of any deficiencies in her performance. Doc. No. 5 at ¶ 8.


Summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242. 249-50 (1986). When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleadings; rather, its response must - by affidavits or as otherwise provided in this rule - set out specific facts showing a genuine issue for trial. Id.

To demonstrate entitlement to summary judgment, defendant, as the moving party, is not required to refute the essential elements of the plaintiff‟s cause of action. Defendant need only point out the absence or insufficiency of plaintiff‟s evidence offered in support of those essential elements. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Once that burden has been met, plaintiff must identify affirmative evidence of record that supports each essential element of the cause of action. Id. If plaintiff fails to provide such evidence, she is not entitled to a trial, and defendants are entitled to summary judgment as a matter of law. Id.

While summary judgment is typically disfavored in employment discrimination cases, it is appropriate when a plaintiff relies on mere inferences, conjecture, speculation or suspicions. See Anderson v. School District of Philadelphia, 1998 U.S. Dist. LEXIS 4232, 1998 WL 151034, *5 (E.D. Pa. 1998). Similarly, summary judgment may not be granted if there is a disagreement over what inferences can be reasonably drawn from the facts, even if the facts are undisputed. Ideal Dairy Farms, Inc. v. John Labatt. Ltd., 90 F.3d 737, 744 (3d Cir. 1996), citing Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1381 (3d Cir. 1991). Moreover, "any unexplained gaps in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment." Ideal Dairy Farms, 90 F.3d at 744, quoting Ingersoll-Rand Financial Corp. v. Anderson, 921 F.2d 497. 502 (3d Cir. 1990)(quoting O'Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir.1989)).

Finally, we do not distinguish between the claims under federal and Pennsylvania law in our disposition of this case as the standards are the same for purposes of determining the summary judgment motion. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.1996).

In summary, the inquiry under a Rule 56 motion is whether the evidence of record presents a genuine dispute over material facts so as to require submission of the matter to a jury for resolution of that factual dispute, or whether the evidence is so one-sided that the movant must prevail as a matter of law. It is on this standard that ...

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