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Cacciola v. Gear

United States District Court, E.D. Pennsylvania

May 29, 2014

JUDY CACCIOLA
v.
WORK N GEAR

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For JUDY CACCIOLA, Plaintiff: JEREMY M. CERUTTI, LEAD ATTORNEY, MARK T. SOTTILE, ARI RISSON KARPF, KARPF KARPF & CERUTTI, BENSALEM, PA.

For WORK N GEAR, LLC, Defendant: BRIAN H. LAMKIN, LEAD ATTORNEY, PRO HAC VICE, MICHAEL G. DONOVAN, LEAD ATTORNEY, MANCHEL & BRENNAN PC, NEWTON, MA; CAROLYN ANNE PELLEGRINI, LEAD ATTORNEY, CHASTITY CARTER BRUNO, MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP, PHILADELPHIA, PA.

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MEMORANDUM

L. Felipe Restrepo, United States District Court Judge.

Judy Cacciola brought suit against her former employer, Work N Gear, for sexual harassment and retaliation in violation of federal and state law. Now before the Court is Work N Gear's motion for summary judgment on each of Cacciola's claims. For the reasons explained below, the motion will be granted.

I. FACTS ANDPROCEDURAL HISTORY[1]

In March of 2007, Cacciola began employment with Work N Gear, a retailer of clothing and footwear. See Joint Appendix (" JA" ) at 179. She started as a co-manager of Work N Gear's Glenolden, Pennsylvania retail outlet (" the Glenolden store" ). Id. On May 4, 2008, Cacciola was promoted to manager of the Glenolden store. JA at 181. She continued as manager of that store until her termination on September 6, 2011. Def.'s St. of Facts (" SOF" ) ¶ 3.

A. Cacciola's Interactions with Michael Hollitt

From approximately September of 2010 until the end of her employment, Cacciola's direct supervisor was a group manager named Michael Hollitt. Id. ¶ 5. Hollitt supervised Cacciola via telephone, from a Work N Gear store in New Jersey, where he also served as that store's manager. JA at 49. Hollitt's position afforded him substantial power over Cacciola. JA at 548. For example, Eileen Siner, Hollitt's own former supervisor, and a former regional manager for Work N Gear, testified that Hollitt could recommend the termination of employees such as Cacciola to Siner, and that together he and Siner would make a decision. Id. It is Hollitt who is alleged to have sexually harassed Cacciola.

Because Cacciola and Hollitt did not work in the same retail store, the vast majority of the alleged harassment occurred during telephone conversations. Cacciola does not allege that the substance of the conversations themselves were sexual in nature. Instead, she alleges that at the end of each phone call, rather than finishing the call by saying goodbye or some other normal sign-off, Hollitt would exclaim " happy canachi!," or, state that he was going to give Cacciola a " nipple twister." JA at 55-57. There was no rhyme or reason to which sign-off Hollitt would give, and the exclamations were completely unrelated to the conversations that preceded them. JA at 57.

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Cacciola thought " happy canachi!" sounded like a nursery rhyme and did not consider it sexual in nature or harassing.[2] JA at 59. However, she alleges that upon hearing the " nipple-twister" sign-off she felt invaded; like Hollitt was " coming through the phone" and grabbing at her. JA at 58. The sign-off generally made it difficult for her to concentrate on her job for approximately forty-five minutes. JA at 59. Cacciola testified that she and Hollitt spoke one to three times per week, and he split his sign-offs between these two comments the entire time. JA at 110-111. Thus, according to Cacciola, he made the " nipple-twister" comment up to 100 times. Id. This alleged sign-off constitutes the vast majority of Hollitt's alleged sexual harassment.

Despite Hollitt's position as Cacciola's supervisor, they interacted in person only once, when the Glenolden store was rearranging its layout in late June or early July of 2011. JA at 189. Cacciola alleges that at that time Hollitt and another Work N Gear employee, Assistant Manager George Edelman, had a conversation that made Cacciola uncomfortable. JA at 61-64, 189-90. Specifically, with Cacciola standing between Hollitt and Edelman, Hollitt asked Edelman " [w]hen's the last time you had sex?" JA at 62. In turn, Edelman allegedly responded " [l]ast weekend, and I didn't have to pay for it." Id. Cacciola walked away from the conversation and didn't hear any other offensive remarks. JA at 63-64.

B. Cacciola Reports Hollitt's Conduct

Cacciola alleges that in June of 2011, approximately nine months after the telephone calls with Hollitt started, she began complaining about his conduct to Karen Berolini, Work N Gear's Massachusetts-based head of Human Resources. JA at 34. Cacciola states that in her initial call to Berolini she reported that Hollitt was saying " disgusting things," but did not specify what he was saying or that the disgusting things were sexual in nature. JA at 36. Cacciola did not ask Berolini to take any action, and alleges that Berolini said nothing in response; the conversation simply ended. JA at 37. She states the entire conversation was approximately three minutes long. Id. Cacciola alleges that she called Berolini again a few weeks later, and the first conversation was repeated verbatim. JA at 37-38.

The third time Cacciola alleges that she called Berolini was within one week of overhearing the exchange between Edelman and Hollitt. JA at 39-42. Cacciola alleges that in this call she described the Hollitt-Edelman conversation in detail for Berolini. JA at 39-40. Berolini herself allegedly suggested to Cacciola that the conversation constituted sexual harassment, and asked Cacciola if she wanted Berolini to " write it up." JA at 41. Cacciola replied " not yet," by which she meant that she did not want Berolini to begin sexual harassment procedures against Hollitt. Id. Cacciola stated that she and Berolini did not discuss any conduct beyond the overheard exchange. JA at 39-41.

At some point after the third phone call to Berolini, Hollitt allegedly placed a telephone call to Jennifer Webster, a former Work N Gear employee. JA at 219. Webster testified that during that call Hollitt seemed nervous, and asked Webster whether she had ever heard him make a sexual comment to Cacciola. Id. Hollitt

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also allegedly stated that Cacciola had told someone about the nipple-twister comments. Id. Next, Hollitt volunteered to Webster that Cacciola had been terminated from a previous job. Id. Finally, he told Webster not to tell Cacciola that he had called. Id.

Webster and Cacciola are next-door neighbors and Webster and Cacciola's daughter are close friends. JA at 199, 201. Accordingly, Webster quickly told Cacciola about the conversation with Hollitt. JA at 638. Cacciola alleges that soon thereafter she called Berolini again. JA at 44-45. In this call she informed Berolini that Hollitt had contacted Webster and another past employee about her. Id. She did not describe those conversations in detail or mention anything sexual in nature. Id. Around this same time, the phone calls between Cacciola and Hollitt allegedly ceased, with Hollitt calling Edelman, the Glenolden store's Assistant Manager, rather than Cacciola, when he needed to discuss Work N Gear matters. JA at 57, 66.

C. Events Preceding Cacciola's Termination

Each Work N Gear store maintained a list of employees who were to be called by Work N Gear's alarm company, in sequence, in the event of a tripped alarm. JA at 21-23, 249, 259, 521. At the Glenolden store, Cacciola, as group manager, was first on the list, followed by Edelman and " Keyholder" Denise Tramo, respectively. JA at 406-07.

During the late evening of August 26 and early morning of August 27, 2011, Hurricane Irene struck the Delaware Valley. As a result of power outages, the alarm at Work N Gear's Glenolden store was triggered by low battery readings. JA at 196, 293. Thus, Cacciola received a call from the alarm company at approximately 4:05 AM. JA at 77. Work N Gear procedure -- especially during power outages that lead to drained batteries -- is that store employees need not immediately report to the store for this sort of notification. JA at 407. Accordingly, Cacciola called the alarm company back, verified her password, and did not report to the store. JA at 78.

By 5:45 AM, however, the alarm began reporting other problems, including motion detectors being tripped and glass being broken. JA at 78, 294-312. Cacciola received at least two additional calls from the alarm company about these issues. Id. While Cacciola lives within two miles of the Glenolden store, she told the alarm company that she could not go to the store at that time, citing concerns about the weather. JA at 87, 293. Next, at approximately 8:50 AM, motion detectors and glass-break detectors were triggered in the Glenolden store's stock room. JA at 309-10. Cacciola spoke again with the alarm company, told them that police were notified and that she would not be going in. JA at 628.

Edelman received the same notifications as Cacciola. At the time he lived in Delaware, which had instituted a driving ban, preventing him from going to the store.[3] JA at 481. Accordingly, after the second

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alarm, he called Cacciola and told her that he could not respond. JA at 82, 482. Cacciola alleges that she said nothing in return, except possibly goodbye.[4] JA at 82. Edelman in turn called Hollitt, informed him about the alarm, notified him that he could not get to the store, and informed him that Cacciola was not going to the store either. JA at 483-84. Hollitt testified that he then made several calls to Cacciola to discuss the situation with her, including leaving at least one message, but she did not answer or return any of his calls.[5] JA at 523. Later that morning, Hollitt also called Frank Rossi, Work N Gear's Director of Loss Prevention. JA at 250.

Tramo, the third person on the list, was off from work at the time due to a medical condition. However, Edelman sent her a text message at approximately 7:30 AM and soon thereafter they had a telephone conversation regarding the alarm situation. JA at 362-63. After the call, Tramo called Cacciola. JA at 363-65. Cacciola does not recall the substance of the conversation, except that she recalls telling Tramo that she would " take care of [the alarm]." JA at 84-86. Tramo, on the other hand, testified that Cacciola informed her that Cacciola was going to ignore all calls from Hollitt, was not going into the store because she did not work on weekends, and that she did not care if the store burned down. JA at 363. Moreover, Tramo alleges that Cacciola told her -- her subordinate -- that she also should not go into the store and should also ignore attempts by Hollitt to contact her. Id.

Tramo then called Hollitt, and told him " exactly" what Cacciola told her. JA at 364. Tramo observed that the weather was no longer worrisome and offered to go the store herself. Id. Hollitt told her not to; that he would try to get ahold of Cacciola. Id. However, approximately two to three hours later, Hollitt called again, told Tramo that he could not get in touch with Cacciola and asked Tramo if she could go to the store to check it out. With the weather apparently now clear, she and her husband went to the Glenolden store at approximately 10:30 AM. Id. She inspected the store, observed a broken window, and reset an alarm before heading home. JA at 364-65. While there she informed Hollitt of the situation. JA at 364. Soon thereafter, with the State of Delaware's driving ban lifted, Edelman was able to travel to the store, and by approximately 1:00 PM the Glenolden store was open. JA at 493.[6]

D. Work N Gear Investigation

Within a few days of the hurricane, Work N Gear began investigating what occurred at the Glenolden store. JA at 250. Hollitt spoke with Rossi and Berolini, JA at 251, 455, 527, and prepared a written statement dated August 31, 2011, which reiterated his version of the events. JA at 272. He also noted that when he spoke with Cacciola after the storm, and explained to her that Tramo ...


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