United States District Court, E.D. Pennsylvania
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
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.
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.
following facts are either undisputed or construed in a light
most favorable to Plaintiff:
Defendant is a supermarket buying cooperative with
distribution centers in New Jersey and Pennsylvania,
including Breiningsville, Pennsylvania. (Brown Cert.,
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).
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).
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).
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).
March 2011, there was an open full-time Clerk position on the
Third Shift. (Pl. Tr., 38:15-18; 38:25-39:6).
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.
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).
Prior to her promotion, Benscoter had worked as a full-time
Clerk on the First Shift since 2005. (Benscoter Tr., 5:19-21;
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).
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.,
¶6). Benscoter also instructed Plaintiff to first call
in the vendor trucks that had ...