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Katherine Garges v. the People's Light & Theatre

December 17, 2012

KATHERINE GARGES,
PLAINTIFF,
v.
THE PEOPLE'S LIGHT & THEATRE, CO., ET AL., DEFENDANTS.



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

MEMORANDUM

INTRODUCTION

Katherine Garges, who is a lawyer and is proceeding pro se in this case, has sued her former employer, the People's Light & Theatre Company ("the Theatre"), alleging primarily that the Theatre discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963 and the Fair Labor Standards Act of 1938. Ms. Garges's Complaint also sets forth a host of state law claims against the Theatre and against three of her former co-workers, one of whom was her supervisor.

Previously, the Defendants successfully moved to dismiss five of Ms. Garges's tort claims: assault and battery, ratification of assault and battery, negligent hiring, negligent supervision claims, and intentional infliction of emotional distress; Ms. Garges also voluntarily withdrew all claims based upon the Pennsylvania Equal Rights Amendment. Now Defendants have moved for summary judgment as to all of Ms. Garges's remaining claims.*fn1 For the reasons set forth below, Defendants' Motion will be granted as to Plaintiff's federal claims, and the Court declines to exercise supplemental jurisdiction over the remaining state claims.

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Garges joined the Theatre in 2002 as a telemarketer. At the beginning of her employment, Ms. Garges signed a Sales Pay Plan that set hourly pay rates based on weekly sales and required that telemarketers work at least twelve hours per week or suffer a pay penalty. From 2002 through 2006, she and all of the telemarketers were supervised by Sales Director Alexis Cogan. Ms. Cogan's employment with the Theatre ended in March 2006. A year later, in March 2007, Adria Charles was hired as the new Sales Director. Throughout the time Ms. Garges worked at the Theatre, the telemarketing department was very competitive internally and had a high rate of turnover. The Theatre was perpetually seeking new telemarketers. Reportedly, casual profanity was a regular part of the work environment in the department; both male and female employees used profanity, including, on occasion, Ms. Garges herself.

A. Defendants Clemens and Echlin

Ms. Garges points to two men, John David Clemens and Terence Echlin, who she contends created a hostile work environment and were treated more favorably than she was. Shortly after Ms. Cogan left the Theatre, Mr. Clemens started yelling the word "bitch" after hanging up from sales calls. When Ms. Garges confronted him about it, he claimed that he was not directing it at anyone in the room, but rather was only expressing his frustration towards a potential patron who refused to buy from him. Mr. Clemens continued this habit, including during the time when Ms. Charles began working at the Theatre.*fn2 Ms. Garges did not complain to Ms. Charles or any other manager or supervisor at the Theatre about Mr. Clemens's conduct, but she did complain to Mr. Clemens about his use of the word "bitch" "from time to time" when Ms. Charles was present, and Ms. Charles would tell Mr. Clemens to stop disturbing the other telemarketers. Mr. Clemens also asked Ms. Garges once if she liked to be "on top;" a manager may have been present at the time this was said, but Ms. Garges has not presented evidence that she complained to the manager about the comment or that the manager, if any, overheard the comment.

Mr. Clemens and Mr. Echlin also made negative comments within Ms. Garges's hearing about women, pregnant women, and women's rights. Mr. Echlin annoyed Ms. Garges by humming. The two heckled Ms. Garges, particularly when she was attempting to speak with Ms. Charles about work issues. Ms. Garges did not complain to any managers about any of this conduct. The heckling, however, did sometimes occur when Ms. Charles was present. At one point, Mr. Echlin also compared Ms. Garges to a former employee, Mary Kate Chorba, who had often appeared at work intoxicated and who was believed to have committed suicide.

Mr. Clemens sometimes made sales calls from home and sent emails to patrons using his personal email account, but he made the majority of his calls during work hours and his home activities were limited to when patrons specifically asked to be called during non-working hours.*fn3 Ms. Garges never requested permission to work from home. Rita Stern, a female employee, was allowed to work entirely from home under a pay arrangement that differed from the other telemarketers in the department.

Mr. Echlin sometimes managed telefunding campaigns. During the time he managed those campaigns, he was allowed to distribute leads to himself. He did not, however, have the authority to hire, fire, or discipline other employees.*fn4

A female telemarketing employee, Mary Ritter, also occasionally managed telefunding campaigns and was allowed to distribute leads to herself while managing campaigns.

During Ms. Cogan's tenure as manager, she distributed renewal leads to the first person in the department who made a sale on a given evening, creating a snowball effect for that person. All of the department employees were eligible for this prize, but Mr. Clemens often had evenings' first sales.*fn5 Mr. Echlin and Mr. Clemens were at some point given permission to work more hours per week, and Ms. Garges admits that when she asked to work more hours, she also received permission to do so.

Sometime in late 2005 or early 2006, Mr. Clemens had a "temper tantrum" after a discussion with Alexis Cogan when he was forced to return his premises key to the Theatre. He was not terminated for his tantrum.

A few days before her termination, Ms. Garges discussed with Ms. Charles the unfair treatment she felt Mr. Clemens and Mr. Echlin had received under Ms. Cogan's leadership.

B. Payroll Issues

Occasionally, telemarketing employees at the Theatre experienced errors in their paychecks. Both male and female employees experienced such errors. According to Ms. Garges, if payroll errors are accounted for, she was the leading telemarketing sales person for the period of 2007 during which she was still employed at the Theatre.

C. Ms. Garges's Termination and Aftermath

On the morning of July 5, 2007, Ms. Garges discovered a pay error amounting to around $250. She approached Stella Bates, the Theatre's Business Office Manager, about the error. That same morning, Ms. Bates provided Ms. Garges a check for the missing amount. After speaking with Ms. Bates, Ms. Garges returned to the telemarketing room, where Mr. Clemens and Mr. Echlin were working. She was upset about the error, so she left a message for Ms. Charles that explained that there had been an error in her pay, that she had been given a hard time about it, and that an employee whose pay is incorrect twice in the same payroll quarter can get a $500 fine from the employer. Ms. Garges also attempted to email Ms. Charles about it, but did not use the correct email address. She also emailed the Pennsylvania Department of Labor about the payroll errors and showed Ms. Bates a Pennsylvania wage statute.

After Mr. Echlin left the Theatre for the morning, he called Ms. Charles and informed her that Ms. Garges had been very disruptive in the telemarketing room that morning. When Ms. Garges arrived at the Theatre that evening for her shift, Ms. Charles was speaking with another employee. As soon as Ms. Charles finished that conversation, she told Ms. Garges she needed to speak with her immediately. Ms. Garges explained that she had a scheduled sales call at 6:00 p.m. and did not have time to speak with her at the moment. Ms. Charles continued to insist, and Ms. Garges stated, "I'll eat your ass if you want me to, but I have to make this phone call first." Ms. Garges also said that she had attempted to email Ms. Charles about the payroll error that day and did not want to spend any sales time on payroll errors. Ms. Charles then told Ms. Garges she was fired,*fn6 to which Ms. Garges responded, "You can't fire me. I quit." Ms. Garges, however, immediately regretted her statement. Ms. Charles again told Ms. Garges she was fired. She then crossed the room and removed the phone receiver from Ms. Garges's hand. According to Ms. Garges, Ms. Charles then assaulted her, hitting her repeatedly.*fn7

Ms. Garges still would not leave the Theatre, so Ms. Charles left to find her supervisor, Ellen Anderson. While she was gone, Ms. Garges continued to make sales calls; she also left the room to try to find Ms. Charles, and, not finding her, returned to her desk. Ms. Charles then returned with Ms. Anderson and another employee, Jace Blue. Ms. Anderson told Ms. Garges to leave and that she was terminated, but Ms. Garges continued to refuse and asked to speak with Ms. Anderson about her encounter with Ms. Charles. Eventually, Mr. Blue called the police, who arrived and escorted Ms. Garges out of the building, even though Ms. Garges agreed to leave voluntarily at that point. Ms. Garges did not tell the police at that time that Ms. Charles had assaulted her. After Ms. Garges left, Ms. Charles distributed Ms. Garges's leads to other telemarketers in the department.

A former employee, John Hopkins, a male, was at the Theatre on the night of July 5, 2007 to speak with Ms. Charles about returning to work at the Theatre. He was hired that evening. Between early April, when Mr. Clemens returned to work at the Theatre, and Ms. Garges's termination, eight telemarketing employees were hired, five of whom were women.

Within a month after Ms. Garges's termination, three more telemarketers were hired, including one woman.

After her termination, Ms. Garges filed for unemployment compensation, noting that she had been involuntarily terminated. After providing additional information, her claim was initially denied. She then appealed the denial, and a hearing was held on September 7, 2007. No one from the Theatre attended the appeal hearing, and Ms. Garges's appeal was granted. The Theatre contends that it only submitted information verifying Ms. Garges's statements about her wages. Ms. Garges claimed that at the ...


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