The opinion of the court was delivered by: Ludwig, J.
This is a gender-based employment discrimination case. Jurisdiction is
federal question and diversity. 28 U.S.C. '§ 1331, 1332.*fn1
An amended order accompanies this memorandum reversing
summary judgment for defendants on Counts II and IV, and reinstating
them. See previous order of September 29, 2009.
According to the amended complaint: plaintiff Kathryn Zaengle was hired as a salesperson by defendant Rosemount, Inc. in 1993. Her supervisor, Tom Thomas, in 2004 began making comments evincing a bias against women in general, gave plaintiff poor performance reviews, sided against her in two instances involving sales credits, and placed her on "written warning status," thereby delaying her annual salary increase. It is alleged that his actions constituted discrimination based on gender and her status as a single mother. The following claims are asserted: discrimination under Title VII, 42 U.S.C. ' 2000e, et seq. and the Pennsylvania Human Relations Act, 43 Pa.C.S.A. ' 951 et seq.; (Counts I and III); retaliation under Title VII and the PHRA (Counts II and IV); breach of contract (Count V); a request for an accounting (Count VI); violation of Pennsylvania=s Wage Payment and Collection Law, 42 P.S. ' 260.1 et seq. (Count VII), and violation of the Equal Rights Amendment of the Pennsylvania Constitution, Art. I, ' 28 (Count VIII). Upon the close of discovery, defendant moved for summary judgment on all claims, which was granted as to Counts II and IV through VIII. Counts I and III survived. As stated in today's amended order, Counts II and IV have been reinstated.
The Summary Judgment Record*fn2
Rosemount, a subsidiary of Emerson Electric Co., designs and manufactures instruments that control the pressure, temperature, and flow of products used in various industries. Its headquarters is in Minnesota and it has an international network of sales teams. Plaintiff has been a salesperson for Rosemount since 1993. She is an at-will employee whose compensation consists of a salary plus commission based on her sales. Amended complaint, ¶ 6; plaintiff's N.T., 42-45; 204. From 1993 through 2003, her performance evaluations by her supervisor, Tom Thomas, were at a high level. See annual performance evaluations, plaintiff's Appendix, 81-85. While these performance reviews were positive, they included references, as plaintiff notes, to her "personal life," "family demands," and "children," in contrast to the evaluations of the other 11 people in her unit -- all men -- which do not contain such personal data. Deardon affidavit, ¶ 7. In 2003, plaintiff was promoted to a "Level Five" salesperson -- the highest level in the company - based on her performance and Thomas' recommendation.
In the summer of 2004, plaintiff asked to be excused from a regional sales meeting because her son was ill. Plaintiff's affidavit, ¶ 20. In response, Thomas suggested she have a colleague's wife who "stay[ed] home and [was] available for child care purposes" look after her son so she could attend the meeting. Id., ¶ 21. Plaintiff did not assent to this suggestion. In October 2004, Thomas cited plaintiff's behavior regarding a "bookings credit" issue (in effect, a commission dispute) as "unprofessional," although he did not criticize the other sales representative involved -- a man. Thomas N.T., plaintiff's Appendix, 28; see also Written Warning, plaintiff's Appendix, 120-121. In 2004, plaintiff's performance declined from previous years and reached only 68 percent of her sales goal. Defendant's Exhibit DEF104 and DEF112. Her annual performance evaluation for 2004 by Thomas included a need for plaintiff to better "balance her professional and personal life obligations."
In February 2005, when plaintiff missed a customer luncheon and project kickoff in order to take care of her children, Thomas told her, A[n]one of the other salesmen have to worry about children.@ Plaintiff=s affidavit, ¶¶ 31-32. He also told her to take sick leave for days she stayed home with her children. Thomas e-mail to plaintiff, March 4, 2005, plaintiff's Appendix, 92. Plaintiff protested that she had worked full days at home, and using sick leave was not the policy followed by her colleagues. A memo clarifying the policy was then sent to all members of plaintiff's division. Plaintiff's affidavit, 44-45.
In March 2005, as a result of plaintiff's diminished 2004 sales performance, Thomas placed her on a "personal improvement plan." Defendant's exhibits DEF242-DEF244. The plan outlined specific actions for plaintiff to take to improve her performance, such as spending more time in face-to-face meetings and less time preparing written marketing materials. Id. Thomas also said "[y]ou are too tied up with your children and are not getting out of your home office enough." Plaintiff's affidavit, ¶ 38. According to plaintiff, although their sales were comparable to hers, none of her male colleagues were placed on "personal improvement plans." Id., ¶¶ 41-43. In the summer of 2005, when plaintiff asked to be removed from the improvement plan, Thomas refused, stating AI am concerned about how you will do your job this summer when your children are home.@ Thomas N.T., 44-47.
Thomas' review of plaintiff for 2005 rated her performance as "below high" and cited a need for "more face time and she needs to do what she can to reduce or eliminate anything she can that keeps her from being out in the field. Plaintiff's affidavit, ¶ 71.
In May, 2005, plaintiff became involved in the first of two commission split disputes. She requested partial credit for a sale credited to another salesperson. Though plaintiff did not participate in the sale, she had represented the ultimate end-user of the product manufactured by BOC Edwards -- her colleague's client and the actual purchaser of defendant's product. Thomas N.T., 319-333, Exhibit D to defendant's motion; Ronald Kowalik affidavit, Exhibit H to defendant's motion; Tony Mannion affidavit, Exhibit I to defendant's motion. Plaintiff requested 40 percent of the credit; her colleague proposed that he receive 60 percent, that plaintiff receive 30 percent, and that a third salesperson receive 10 percent. See e-mail exchange between plaintiff and Ronald Kowalik, plaintiff's Appendix, 99-112. In accordance with defendant's company policy, their supervisors, Thomas and Tony Mannion jointly resolved the dispute, and plaintiff received 30 percent. Mannion affidavit, 5, Exhibit I to defendant's motion; plaintiff's Appendix, 110-12. According to plaintiff, Thomas said she waited too long to request the credit, though the matter was resolved in the same fiscal year as the sale. Plaintiff's Appendix, 109; plaintiff's affidavit, ¶¶ 64-65.
The second commission dispute occurred in January 2006. In that instance, a male colleague requested credit for sales made by plaintiff in the prior year. The colleague had represented the end-user of a product manufactured by plaintiff's client, who purchased materials from defendant. Plaintiff protested that the request was made months after the fiscal year closed on September 30, 2005. Thomas N.T., 340-352, Exhibit D to defendant's motion; Kelliher affidavit, Exhibit J; Viafora affidavit, Exhibit K. She understood, based on statements made by Thomas, that credit splits could not be adjusted after the close of the fiscal year. Thomas N.T., plaintiff's Appendix, 20. The dispute was referred to managers Thomas and Douglas Viafora, who determined that credit for the sale should be shared. As a result, plaintiff's 2006 sales credit was reduced by $55,000. January 23, 2006 e-mail from Thomas, plaintiff's Appendix, 114-15.
During this dispute, Thomas held a meeting with plaintiff to discuss plaintiff's attitude toward him - what he described as "minor, day-to-day, negative interactions" between the two. See generally Thomas N.T., 118-269. On January 18, 2006, at this meeting, Thomas raised plaintiff=s Aunprofessional@ conduct during the most recent credit dispute. She said his treatment of her was unfair in that delay had been used against her in the first credit split dispute but not in her favor in the second, the more egregious instance. She also accused him of singling her out because of her gender and her children and told him she was thinking of seeing a discrimination lawyer. Plaintiff's affidavit, ¶¶ 89-90; Thomas meeting notes, plaintiff's Appendix, 116-119.
Following the January 18, 2006 meeting, Thomas, with the assistance of defendant=s Human Resources department, wrote a warning to plaintiff. February 7, 2006 written warning, plaintiff's Appendix, 120-21. The warning cited behavioral issues, but no complaints with respect to plaintiff's sales performance. Id. It had the effect of delaying plaintiff=s annual increase by six months. At the end of the meeting at which the letter was reviewed with her, plaintiff told Thomas she believed he was placing her on written warning because of her Asingle mom status.@ Thomas meeting notes, plaintiff's Appendix, 122.
In response to the written warning, plaintiff, on February 21, 2006, sent a rebuttal letter to defendant's human resources personnel, Thomas, and Doug Taylor, who was Thomas= supervisor. Plaintiff's affidavit, 94; plaintiff's Appendix, 123-25. Six months later, the written warning was removed, and ...