United States District Court, M.D. Pennsylvania
CHRISTOPHER C. CONNER, Chief District Judge.
Presently before the court in the above-captioned matter is a motion (Doc. 17) pursuant to Federal Rule of Civil Procedure 56 filed by Sears Roebuck and Co. ("Sears"). Sears seeks summary judgment as to all claims asserted by plaintiff Beatrice Eldrup-Smith ("Eldrup-Smith"), a former employee of Sears who alleges that her former employer discriminated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. , the Pennsylvania Human Relations Act ("PHRA"), 43 PA. STAT. §§ 951-963, the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-19, and corresponding Pennsylvania state minimum wage laws. Sears has also moved to strike Eldrup-Smith's verification (Doc. 30-1) pursuant to Federal Rule of Civil Procedure 56(c)(4). (Doc. 31). For the reasons that follow, the court will grant both motions. (Docs. 17, 31).
I. Standard of Review
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings, " in support of its right to relief. Pappas v. City of Lebanon , 331 F.Supp.2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas , 331 F.Supp.2d at 315.
II. Statement of Material Facts
Eldrup-Smith began her employment at a Sears retail store located in York, Pennsylvania, in January of 2005. (Doc. 18 ¶¶ 1, 5). Sears initially hired Eldrup-Smith as an office manager, but she was promoted to human resources ("HR") lead in early 2006. (Id. ¶ 1-2). Eldrup-Smith had no HR experience prior to joining the Sears' team in 2005, but she received on-the-job training for her HR position. (Id. ¶ 3). Sears has a written anti-discrimination policy which prohibits harassment and discrimination in the workplace. (Id. ¶ 8; see also Doc. 18, Ex. 5 (Sears' workplace harassment and discrimination policy)).
Eldrup-Smith's position as HR lead required her to "maintain working knowledge of applicable federal, state, and local employment laws and ensure awareness and compliance throughout the store." (Doc. 18 ¶ 11). Eldrup-Smith's responsibilities included "providing proactive support for associates, scheduling, coaching, training, supervising and selecting Office Associates to perform [tasks]" and supporting "the management team in their execution of [HR] accountabilities and perform store [HR] administrative functions." (Id. ¶ 12). Eldrup-Smith also performed payroll processing for certain employees and followed up with assistant store managers "to ensure the accuracy of the hours and earnings entered for the associates who report to them." (Id. ¶ 13).
In December of 2006, in her role as HR lead, Eldrup-Smith called a Sears HR hotline, referred to internally as 88 Sears, for advice regarding a complaint she had received from an associate about a manager's behavior. (Id. ¶ 59). The consultant from 88 Sears advised Eldrup-Smith to speak with the store manager and have the store manager conduct an investigation. (Id. ¶ 60). The consultant also advised Eldrup-Smith to tell the store manager to interview the manager involved and report back to 88 Sears thereafter. (Id. ¶¶ 61-62). Eldrup-Smith participated in the store manager's interview of the allegedly offending manager. (Id. ¶ 63).
Eldrup-Smith suffers from post-traumatic stress disorder ("PTSD"). (Id. ¶ 17). She was diagnosed in January of 2003 following a traumatic personal event and has been under the care of medical professionals and counselors since that time. (Id. ¶ 18). Eldrup-Smith did not inform Sears' that her PTSD diagnosis required workplace accommodations nor did she request such accommodations. (Id. ¶ 19). Eldrup-Smith was never denied the right to take time off. (Id. ¶ 20). She contends that although Sears never denied her requests for time off, her manager would verbally reprimand her upon her return. (Doc. 22 ¶ 20).
All hourly employees are required to record hours worked on a time and attendance recording device. (Doc. 18 ¶ 21). In her role as HR lead, Eldrup-Smith "trained other associates on Sears' timekeeping policies including the policy that non-exempt associates, like [herself], are responsible for accurately recording their time." (Id. ¶ 22). The policy mandates that the time an associate "punches" must accurately reflect the hours actually worked and the length of meal periods. (Id.) All employees, including Eldrup-Smith, are trained with respect to associates' time and attendance responsibilities. (Id. ¶¶ 21-26). The time and attendance policy also prohibits managers from requiring non-exempt employees, like Eldrup-Smith, to work off the clock. (Id. ¶ 28). The policy similarly prohibits managers from ignoring such conduct when it occurs. (Id.) Any infractions are subject to disciplinary action and must be reported to 88 Sears. (Id. ¶ 29; also Doc. 18 Ex. A, Eldrup-Smith Dep. 46:5-23, May 1, 2013). Eldrup-Smith understood these policies and acknowledged that she received training on them. (Doc. 18 ¶ 32; Eldrup-Smith Dep. 46:5-23)).
Chris Dare ("Dare") was the store manager at the time of Eldrup-Smith's termination. (Doc. 18 ¶ 35). On July 9, 2009, Eldrup-Smith was scheduled to work from 1:15 p.m. to 9:00 p.m. (Id. ¶ 36). Eldrup-Smith became locked out of her office in the early afternoon of July 9 and sent a text message to Dare requesting to leave early. (Id. ¶ 37). Eldrup-Smith testified that Dare "apologized and said we'll get you a key as quick as possible, " but she did not receive a key. (Id. ¶ 38). Eldrup-Smith does not recall punching out when she left work on July 9, 2009. (Id. ¶ 39). She testified that she left work between 3:00 and 4:00 p.m. on that day. (Id. ¶ 40). When she returned for a scheduled shift on July 11, 2009, Eldrup-Smith entered a manual clock-out time for July 9, 2009, of 9:15 p.m. (Id.)
On July 13, 2009, Dare approached Eldrup-Smith about the falsified time entry. (Id. ¶ 43). Eldrup-Smith drafted a statement to "Michelle, " an 88 Sears HR representative, explaining her actions as follows:
I was angry at having my time wasted yet again and frustrated over coming 40 min[utes] to work and not being able to perform my job. When I cooled off I realized I should put correct time even though my time was wasted so I adjusted it. It was out of sheer frustration. I should not have been quick to lose it.
(Id. ¶¶ 43-46; Eldrup-Smith Dep. Ex. 20). The note is dated July 13, 2009. (Doc. 18 ¶ 43; Eldrup-Smith Dep. Ex. 20). Dare consulted the 88 Sears HR hotline for advice. (Doc. 18 ¶ 48). Thereafter, on or about July 13, 2009, Dare terminated Eldrup-Smith for time theft. (Id. ¶ 49). She was 55 years old at the time of her termination. (Id. ¶ 51). Sears has previously terminated two other associates in the same store, ages 42 and 22, for time theft violations. (Id. ¶ 52). Eldrup-Smith does not contradict any of these facts with record evidence; rather, she challenges Sears' "characterization" of the facts and urges the court to draw different inferences therefrom.
Eldrup-Smith commenced this action by filing a seven count complaint (Doc. 1) on September 18, 2012, asserting various claims for discrimination, harassment, and retaliation against her former employer. Sears answered (Doc. 4) the complaint on November 19, 2012, denying all of Eldrup-Smith's allegations. After a period of discovery, Sears moved for summary judgment (Doc. 17) as to all of Eldrup-Smith's claims asserting, in part, that Eldrup-Smith's claims fail for a total lack of evidence. Sears' motion was accompanied by a supporting brief (Doc. 19) and statement of undisputed material facts (Doc. 18) with citation to record evidence. Eldrup-Smith filed opposition papers (Doc. 23) and a responsive statement of facts (Doc. 22) with citation only to her complaint (Doc. 1) and unsworn notes. Sears filed a reply brief (Doc. 25) highlighting these evidentiary deficiencies, and Eldrup-Smith responded with a sur-reply brief (Doc. 30) accompanied by her sworn verification (Doc. 30-1) ...