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Santos v. Wakefern Food Corp.

United States District Court, E.D. Pennsylvania

January 31, 2017



          SCHMEHL, J.

         Plaintiff brought this action claiming she was terminated by the Defendant based on her age in violation of the Age Discrimination in Employment Act (“ADEA”) and the Pennsylvania Human Relations Act (“PHRA”). Plaintiff also claimed that she was terminated in retaliation for complaining about age discrimination. After Defendant filed a motion for summary judgment, Plaintiff withdrew her age discrimination claims under the ADEA and the PHRA, leaving only the retaliation claims. (ECF 37, p.1, n.2.) For the reasons that follow, the motion for summary judgment is granted.


         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is “material” if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. and N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

         The following facts are either undisputed or construed in a light most favorable to Plaintiff:

         1. Defendant is a supermarket buying cooperative with distribution centers in New Jersey and Pennsylvania, including Breiningsville, Pennsylvania. (Brown Cert., ¶3.)

         2. Defendant hired Plaintiff (age 56 at the time) on January 29, 2008 to work as a part-time Clerk on the Third Shift at the Breiningsville distribution center. (Pl. Tr., 16:17-19; 24:4-6; First Amended Complaint, ¶¶ 18-19).

         3. Plaintiff's direct supervisor was Norman Gibbs (“Gibbs”), the Lead Clerk (age 51 at the time). (Pl.Tr., 26:1-4; 26:13-20; 66:8-11; Brown Cert., ¶14).

         4. Plaintiff was frequently counseled by Gibbs regarding conflicts she had with her coworkers. For example, as early as September 9, 2008, Gibbs verbally counseled Plaintiff regarding an argument she had with another employee (Alexis Gaffney) on the warehouse floor. (Gibbs Cert., ¶5 and Ex. A). On November 8, 2009, Gibbs counseled Plaintiff for causing a disruption in the warehouse with her complaints that another employee (Michelle Ritter) received the employee of the month award. (Id. at ¶6 and Ex. B). On February 16, 2010, Gibbs counseled Plaintiff for causing a disruption in the warehouse regarding an incident involving her daughter (Paulette Dos Santos), who also worked for Defendant. (Id. at ¶7 and Ex. C). Shortly thereafter, on April 1, 2010, Gibbs counseled Plaintiff regarding her inability to work with another Clerk (Marilyn Caban). (Id., ¶8 and Ex. D). On January 7, 2011, Gibbs counseled Plaintiff for yelling at other Clerks who refused to help her. (Id. at ¶9 and Ex. E).

         5. On September 10, 2009, Gibbs issued Plaintiff a written disciplinary action because supervisor Paul Stilwell observed Plaintiff using her cell phone in the warehouse during working hours. (Pl. Tr., Pl. Tr., 61:19-21; 62:4-7; Rygiel-Boyd Cert., Ex. G).

         6. In March 2011, there was an open full-time Clerk position on the Third Shift. (Pl. Tr., 38:15-18; 38:25-39:6).

         7. In accordance with Defendant's policy to offer the most senior part time employee an open full time position, Plaintiff, who “was the next seniority in line, ” was promoted to the full-time Clerk position. Plaintiff was 60 years old at that time. (Pl. Tr., 38:11-20; 39:18-40:14).

         8. As a full-time Clerk, Plaintiff's job duties were similar to those she performed as a part-time Clerk, except now she also was assigned to work in the receiving or the shipping office. (Pl. Tr., 72:8-21). She was not exclusively assigned to a particular office; her assignments rotated. (Pl. Tr., 72:22-74:1). Additionally, Plaintiff assisted on the warehouse floor when the business needs dictated it. (Pl. Tr., 74:5-12).

         9. On August 29, 2011, five months after Plaintiff was promoted to full-time clerk on the Third Shift, Cathy Benscoter (“Benscoter”)(age 48 at the time) was promoted to a Supervisor position on the Third Shift. (Benscoter Tr., 7:2-14; 16:24-17:4; 17:18-23; 32:3-5).

         10. Prior to her promotion, Benscoter had worked as a full-time Clerk on the First Shift since 2005. (Benscoter Tr., 5:19-21; 17:5-9).

         11. Three Supervisors were assigned to the Third Shift (Benscoter, Paul Stillwell, and Ron Foxworth), all of whom were responsible for supervising the movement of merchandise into, through and out of the warehouse. Although Benscoter (and the other Supervisors) oversaw the day-to-day work performed by the clerks (including Plaintiff), Gibbs, the Lead Clerk, was the clerks' direct supervisor. (Benscoter Tr., 19:23-20:4). Gibbs in turn reported to both the Third Shift Supervisor, Bill McNellis (“McNellis”)(age 59 at the time), and the Senior Administrative Supervisor, Don Carmichael (“Carmichael”)(age 49 at the time). (Pl. Tr., 52:21-53:24).

         12. In her new position, Benscoter began to change certain Third Shift procedures to conform to First Shift procedures. (Benscoter Cert., ¶¶3, 9). For example, Benscoter wanted part-time clerks to come into the receiving office to check if their loads were balanced, as was done on the First Shift. (Id., ¶4). Benscoter also asked the part-time clerks to use the intercom system to page the lumpers to their doors. (Id., ¶5). Benscoter also wanted each clerk to physically check the incoming freight to ensure there were no issues, which was not always being done by the Third Shift clerks. (Id., ΒΆ6). Benscoter also instructed Plaintiff to first call in the vendor trucks that had ...

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