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U.S. Equal Employment Opportunity Commission v. Bob Evans Farms, LLC

United States District Court, W.D. Pennsylvania

August 17, 2017




         It is the rare lawsuit in which the record entitles a plaintiff to the grant of summary judgment in its favor. This is one of those cases.

         This case stems from the removal of Hayley Nadalin, nee Macioce ("Macioce"), [1] who was pregnant at the time, from the automatic shift scheduling process utilized by the Bob Evans Farms, LLC ("Bob Evans") restaurant located in West Mifflin, Pennsylvania ("West Mifflin Bob Evans"), where she worked as a server. The Equal Employment Opportunity Commission ("EEOC") brings this action alleging pregnancy discrimination pursuant to Title VII of the Civil Rights of 1964 ("Title VII"), 42 U.S.C. § 2000e et. seq., and certain amendments thereto, including the Pregnancy Discrimination Act of 1978 ("PDA"), 42 U.S.C. § 2000e(k), and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

         The EEOC, charged with the enforcement of Title VII, is authorized by 42 U.S.C. § 2000e-5(f)(1) and (3) to bring this action. It seeks compensatory damages, punitive damages, back pay and injunctive relief. Both parties have moved for summary judgment. (ECF Nos. 58 and 61). The EEOC moves for partial summary judgment, seeking judgment in its favor on liability and as to the "good faith" defense to punitive damages asserted by Bob Evans. (ECF No. 58). It also seeks an order setting a trial schedule for a jury to determine damages under 42 U.S.C. § 1981a and for the Court to determine the amount of any back pay to be awarded for the benefit of Macioce. Id. Bob Evans moves for summary judgment on the pregnancy discrimination claim against it, and also alternatively seeks summary judgment on the EEOC's claims for emotional distress, damages, and injunctive relief. (ECF No. 61).


         Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The parties must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A).

         Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial, " or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(a), (e)) (emphasis in Matsushita). To meet its burden, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989). Moreover, a party's labelling or characterizing a fact as "disputed" does not make it so--the record evidence the opposing party points to must support the dispute of fact, whether through reasonable inference or otherwise. If the non-moving party's evidence merely is colorable or lacks sufficient probative force, summary judgment must be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         In other words, summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party. See Id. at 250. "Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587; Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir.2009).

         In reviewing the record evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Matsushita, 475 U.S. at 587-88; Huston, 568 F.3d at 104 (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.2004); Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir.1998). "Only disputes over facts that might affect the outcome of the suit: under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48. "Where the defendant is the moving party, the initial burden is on the defendant to show that the plaintiff has failed to establish one or more essential elements to his case." See Podobnik v. U.S. Postal Serv., 409 F.3d 584, 589 (3d Cir.2005) (citing Celotex Corp., 477 U.S. at 323-24).

         "On cross-motions for summary judgment, the law in our Circuit is clear-the Court considers each Motion on its own merits, tested against the standards of [Federal Rule of Civil Procedure 56]." Wallace v. Natl Indem. of Mid-Am., 2:14-cv-1253, 2016 WL 6948781, at *1 (W.D. Pa. July 8, 2016) (citing J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 925 (3d Cir. 2011)); see also Home for Crippled Children v. Prudential Insurance Co., 590 F.Supp. 1490, 1495 (W.D. Pa. 1984). Accordingly, in considering whether either such motion now before the Court should be granted, "as to the Plaintiffs Motion, I am to view the record facts in a light most favorable to the Defendant. As to the Defendant's Motion, the opposite is the rule." Wallace, 2016 WL 6948781, at *1. On cross-motions, seemingly contradictory positions do "not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives . . . determination [of] whether genuine issues of material fact exist, " Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968), preventing judgment in favor of the other party. The standards under which a court grants or denies each party summary judgment do not change by virtue of cross-motions being presented. Home for Crippled Children, 590 F.Supp. at 1495.

         Succeeding on an affirmative summary judgment motion filed by a plaintiff, such as that filed by the EEOC here, can prove a particularly difficult but not insurmountable task. This is because the EEOC, as plaintiff:

bears the burden of proof on the [discrimination] claim. "After all, the burden of proof includes the obligation to persuade the factfinder that one's propositions of fact are indeed true. Thus, if there is a chance that a reasonable factfinder would not accept a moving party's necessary propositions of fact, pre-trial judgment cannot be granted. Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the sufficiency of the movant's proof, will."

Wallace, 2016 WL 6948781, at *3 n. 2 (citing El v. Se. Pennsylvania Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007)).

         II. FACTS

         The following material facts are undisputed[2] unless otherwise noted. In 2009, Macioce began working as a server at the West Mifflin Bob Evans. (ECF Nos. 60 [EEOC's Concise Statement of Material Facts], 72 [Bob Evans' Response to EEOC's Concise Statement of Material Facts], at ¶ 1). As a part-time server, Macioce was not guaranteed any set number of work hours. (ECF Nos. 63 [Bob Evans' Concise Statement of Material Facts], 75 [EEOC's Response to Bob Evans' Concise Statement of Material Facts], at ¶ 17). In 2012, at a time when Jay Moreau ("Moreau") was then the Assistant General Manager at her location, (ECF No. 64-1 at 7), Macioce gave birth to her first child. She neither needed nor took leave prior to childbirth in 2012, and she requested and received leave after that childbirth without any problem. (ECF Nos. 63, at ¶¶ 19, 20, 21; 75, at ¶ 17).

         By 2014, Jay Moreau ("Moreau") was the General Manager at the West Mifflin Bob Evans. (ECF Nos. 60, 72, at ¶ 3). As General Manager, Moreau's responsibilities included shift-scheduling, and he also was one of the people designated by Bob Evans to implement its anti-discrimination policies and procedures. (ECF Nos. 60, 72, at ¶¶ 4, 5, 6). Throughout his employment at Bob Evans, Moreau was aware that it is illegal to discriminate as to terms and conditions of employment on the basis of pregnancy. (ECF Nos. 60, 72, at ¶ 5).

         Bob Evans uses an automated computer-based scheduling system to create employee schedules based on factors such as employees' availability and the anticipated needs of the restaurant. (ECF Nos. 60, 72, at ¶ 8). Subject to manager approval, servers are able to change their own availability in the computer system for the purpose of the automatically generated shift schedule. (ECF Nos. 60, 72, at ¶ 9).

         According to Bob Evans' Employee Handbook, its seven-day workweek runs from the beginning of business on Thursdays and ends at the close of business on Wednesdays. (ECF No. 58-10). In his deposition, Moreau explained the scheduling process. Although the General Manager is responsible for the schedule, the Assistant General Manager also has scheduling duties, including filling in any gaps if there are any glaring holes in the automatically generated schedule and addressing issues such as when a scheduled employee calls in sick. (ECF Nos. 64-3 at 25; 58-3 at 18 [Moreau Dep. at 73, 74]). The automatic scheduling system generates a schedule on the Thursday two weeks in advance of that schedule's start, to which last-minute changes or adjustments typically may be made by management up until the following Wednesday, and then the next day, on Thursday, employees have access to see the "finalized" schedule on-line and where it is posted on an office door. (ECF No. 58-3 at 11-14 [Moreau Dep. at 40, 42, 43, 44]). Moreau also could handwrite or "pencil-in" someone onto the finalized posted schedule. (ECF No. 64-3 at 21 [Moreau Dep. at 57]). So, for example, the automatically generated schedule for the workweek beginning Thursday, August 7, 2014, initially would have been generated as a draft on Thursday, July 24, 2014, to which last-minute changes or adjustments would have been made in the system by management up until the following Wednesday, July 30, 2014, and then it would have been posted on Thursday, July 31, 2014, detailing for employees the schedule for work hours that began on August 7, 2014. (ECF No. 64-3 at 11-15 [Moreau Dep. at 41-46]).

         From January 1, 2014 through July 1, 2014, Macioce averaged approximately 22 hours of work a week. (ECF Nos. 63, 75 at ¶ 18). The parties, however, dispute the number of "shifts"[3]that Macioce typically was scheduled to work in an average workweek prior to her removal from the automatic scheduling process. The EEOC contends Macioce generally worked on five days in a work week. (ECF Nos. 59 at 3; 60, at ¶ 17). Bob Evans contends that Macioce typically worked on four days in a week, based not on its own work records but rather the testimony of Moreau that his "understanding" was that on a weekly basis she worked a "approximately four days a week." (ECF Nos. 72, at ¶ 17, 19; 64-3 [Moreau Dep. at 56-57]). Review of the actual work records that Bob Evans produced in discovery reveals that in the 49 workweek period beginning from Thursday, August 8, 2013 through Wednesday, July 16, 2014, Macioce was scheduled for 4 shifts a week in 9 of those weeks, was scheduled for 6 shifts a week in 2 of those weeks, and was scheduled for 5 shifts a week in 38 of those workweeks. (ECF No. 58-9). Thus, she was far more often scheduled for 5 shifts a week and in that 49 week period she was scheduled to work shifts on average 4.86 days per week.

         In July of 2014, Macioce was pregnant with her second child with a due date in September 2014. (ECF Nos. 60, 72, at ¶ 2). Macioce testified that she was available for work and intended to work up until she gave birth to her second child, (ECF Nos. 60 at ¶ 18; 64-1 at 38), which ultimately occurred on September 12, 2014. (ECF No. 64-1 at 8). In mid-July of 2014, just before Macioce was scheduled to be on vacation from July 21 through July 29, 2014, (ECF No. 58-2 at 8 [Macioce Dep. at 98]), Moreau and Macioce had a conversation about her future work schedule. Because Moreau believed Macioce's pregnancy due date was "imminent" and that delivery of her child "could happen any day, " Moreau asked Macioce when she planned to take a leave of absence due to her pregnancy. (ECF No. 72 at 9-10 [Bob Evans' Separate Concise Statement of Undisputed Material Facts in response to EEOC's motion for summary judgment, at ¶¶ 19, 20, 22, 23]). Macioce did not state her due date to Moreau at this time, did not request a leave of absence, (ECF No. 72, Bob Evans' Separate Concise Statement of Undisputed Facts in response to EEOC's motion for summary judgment, ¶ 23), and did not request that Moreau change or eliminate her availability in the automated scheduling system. (ECF No. 58-3; 64-3 at 19 [Moreau Dep. at 55]).[4] Macioce indicated to Moreau that she would work until she had the baby. (Macioce Dep. at 100-101, 58-2 at 11; ECF No. 75 at ¶ 26).

         The parties also dispute certain aspects of the conversation between Macioce and Moreau that took place in mid-July, 2014 regarding scheduling. Macioce testified that Moreau approached her and asked her when she was going to take a leave of absence, and when she responded that she was going to work until she had the baby, Moreau asked her if she could change her availability in the system. When she asked him why he wanted her to do this, Moreau responded that he didn't "want to get screwed over if [she had] the baby." (ECF No. 64-1 at 20-21 [Macioce Dep. at 101; Moreau Dep. At 100-101]). Moreau then again asked her to change her own availability. Macioce told him no, told him she was planning on working until she had the baby, and then walked away. (ECF No. 64-1 at 21 [Macioce Dep. at 101]). As she was waiting on tables and despite her indication that she did not want a change in her availability, Moreau nevertheless told her: "I'm just taking you off the schedule, but you're still going to get your hours." (ECF No. 64-1 at 21 [Macioce Dep. at 101]).

         Moreau could not recall all of what was said in the conversation with Macioce, (ECF No. 64-3 [Moreau Dep. at 49, 50, 55, 56]), but disputed that Macioce ever objected when he told her that he was taking her off of the automatic scheduling. (ECF No. 72, Bob Evans' Separate Concise Statement of Undisputed Facts in Response to EEOC's Motion for Summary Judgment, [5]¶ 29). According to Moreau, at that time, Macioce told him that she was pregnant but did not tell him her due date, (ECF No. 64-3 at 17, 19 [Moreau Dep. at 49, 55]), and Moreau told Macioce that he was going to adjust the automatic scheduling system and set her availability to "zero" so that Macioce would not continue to be automatically scheduled, (ECF Nos. 72, Bob Evans' Separate Concise Statement of Undisputed Facts in response to EEOC's Motion for Summary Judgment, ¶ 25; 58-3 at 14, 17 [Moreau Dep. at 50, 55]), but that he would continue to give her shifts, and that she needed to continue to call-in to indicate that she was still available to work. (ECF No. 64-3 at 17-18, 19 [Moreau Dep. at 49-50, 55]). Moreau testified that he did not recall what Macioce said in response to his final determination that he would remove her availability for automatic scheduling in the automated system, but he did specifically recall that she did not object. (ECF No. 64-3 at 19 [Moreau Dep. at 55]).[6]

         Moreau, as he said he would, took Macioce out of the automated scheduling system. (ECF No. 72, Bob Evans' Separate Concise Statement of Undisputed Facts in Response to EEOC's Motion for Summary Judgment, ¶ 26). He indicated that he did so because she was pregnant, he believed her need for leave was imminent, [7] and he wanted to ensure that the restaurant's staffing needs were met. (ECF Nos. 58-3 at 18 [Moreau Dep. at 74]; ECF No. 72, Bob Evans' Separate Concise Statement of Undisputed Facts in Response to EEOC's Motion for Summary Judgment, ¶ 26). Moreau's belief that Macioce's due date was imminent was based on the fact that she was pregnant and that he had heard "hearsay" from other employees that "she was close." (Moreau Dep. at 54). Moreau expected Macioce to keep him apprised if she wished to continue to work and was able to work. (ECF No. 72, Bob Evans' Separate Concise Statement of Undisputed Facts in Response to EEOC's Motion for Summary Judgment, ¶ 28).[8]

         After the mid-July 2014 conversation, Macioce went on her previously scheduled vacation, (ECF No. 58-2 at 8 [Macioce Dep. at 98]), and returned to a change in the way she was to be scheduled for shifts at Bob Evans. The evidence regarding Macioce's work schedule after she returned from vacation is somewhat less certain. Certain exhibits produced by Bob Evans and attached to the EEOC's filings are in rather miniscule print. At times the parties refer to shifts being handwritten onto the schedule and shifts being penciled in, which the Court takes to be functionally the same thing. Additionally, copies of the actual schedules on which Macioce was penciled in or handwritten in are unavailable because they are not retained, (ECF No. 64-3 at 23 [Moreau Dep. at 61]), but the computer generated schedules and "raw punch" records of shifts actually worked are. See, e.g., (ECF Nos. 58-7; 70-12; 70-22). The Court has therefore plowed through these filings to assess just what the record establishes in these regards.

         On or about August 1, 2014, Moreau changed Macioce's availability in the scheduling system to "zero" effective for shifts beginning the week of August 7, 2014. (ECF Nos. 60, 72, at ¶ 10, 15; 72, at ¶ 19). After removing her from the automatic scheduling, Moreau only added her onto the schedule by handwriting (or penciling) her in for shifts for the first week that she was no longer automatically scheduled for shifts, but not for any other weeks. (ECF No. 64-3 at 22, 23 [Moreau Dep. at 67, 60]). Moreau did not speak with Macioce regarding these shifts, and instead Giaquinto, also responsible for scheduling duties, informed Macioce when she was put on the schedule. (ECF No. 64-3 at 22, 25 [Moreau Dep. at 60, 73]).

         To obtain shifts after Moreau removed her from the automatic scheduling, Macioce spoke with Giaquinto, shift leader Heather Hathaway, and another manager, Kathy Schneider, but did not discuss additional shifts with Moreau. (ECF No. 64-1 [Macioce Dep. at 102]). Macioce told Giaquinto that Moreau had taken her off of the schedule and Giaquinto used Macioce to supplement the schedules she was working on and to fill in the gaps in the schedule for that upcoming week. (ECF No. 70-8 at 10-11, 12). Giaquinto understood that Macioce was not pleased at being taken off of the automated schedule. (ECF No. 70-8 at 11, 12 [Giaquinto Dep. at 26, 32]). Giaquinto, however, was not instructed by Moreau to give Macioce any number of work hours in the wake of Moreau "zeroing" out Macioce's availability in the automated system. (ECF No. 70-8 at 10, 12, 13). Additionally, Macioce could not simply be scheduled for the number of shifts or days she usually worked prior to being removed from the automated scheduling or for any work when she was not needed, but could only be scheduled if there was a "hole" in the automatically generated schedule or an additional need for a particular shift. (ECF Nos. 58-8 at 5-6; 70-8 at 12, 13).

         Macioce asked for shifts from Giaquinto at least three times in person, (ECF No. 72, Bob Evans' Separate Concise Statement of Undisputed Facts in Response to EEOC's Motion for Summary Judgment, ¶ 31), [9] and sat down with Giaquinto when Giaquinto was going over the schedule. Heather Hathaway was able to find shifts for Macioce to work on Saturday August 16th and Sunday August 17th. (ECF No. 58-2 at 5 [Macioce Dep. at 126]). When Macioce called in and spoke with Kathy Schneider regarding being added to the schedule, Macioce was told no one had called off for that morning. (ECF No. 58-2 at 14 [Macioce Dep. at 125]).

         Bob Evans produced in discovery a document displaying shifts that were auto-scheduled by the scheduling system, shifts manually added in the system and shifts manually deleted in the system for the relevant time period. (ECF No. 58-7; see also ECF No. 70-22). After the mid-July conversation, in addition to Moreau eliminating Macioce's availability in the automated system so that she would no longer be automatically scheduled for shifts effective August 7, 2014, on three separate occasions he deleted shifts for which Macioce previously had been automatically scheduled to work, amounting to a total of twelve out of fifteen such shifts being actively deleted from the schedule. (ECF No. 58-7 at 4). Specifically, on July 18, 2014, Moreau deleted in the scheduling system shifts that had been auto-scheduled for Macioce to work on July 31, 2014 and August 1, 2014. (ECF No. 70-1, ¶ 6, Exhibit F at 3). Then, on July 27, 2014, Moreau deleted shifts that had been auto-scheduled for Macioce to work on August 7, 8, 10, 11 and 12, 2014. Id. Finally, on August 1, 2014, Moreau deleted shifts that had been auto-scheduled for Macioce to work on August 15, 17, 18, 19, and 20. Id. Thus, Moreau removed Macioce from the automated schedule system for shifts to be worked by her on July 31, 2014 and on August 1, 7, 8, 10, 11, 12, 15, 17, 18, 19 and 20, 2014. Macioce, however, worked shifts previously automatically scheduled for August 3, 4, and 5, 2014. (ECF Nos. 60, at ¶ 20).

         Ultimately, Moreau penciled Macioce onto the schedule for shifts she worked on August 9 and 10, 2014, and another manager penciled her onto the schedule for August 22, 2014. (ECF Nos. 72, at ¶ 19; 74-4 at 14-15 [McFarland Decl., at ¶ 9 & Ex 5]). Beginning on August 13, 2014, Assistant Manager Giaquinto added Macioce to the schedule. (ECF No. 58-7 at 4). Macioce was manually added to the schedule for shifts on August 16, 17, and 18. (ECF Nos. 72, at ¶ 19; 74-4 at 14-15 [McFarland Decl., at ¶ 9 & Ex 5]). Thus, from the workweek beginning on August 7, 2014 through September 12, 2014, when Macioce delivered her baby, Macioce was scheduled for six shifts. (ECF No. 72, at ¶ 20). Bob Evans did not schedule Macioce for any work after August 22, 2014. Macioce did not "call-in" regarding work after August 22, 2014, (Macioce Dep. at 130), but she never indicated to Bob Evans that she was unable to or did not want to work, and in the wake of being removed from the automatic schedule she affirmatively indicated that she desired shifts via her prior requests for shifts from the assistant managers, by putting her name and phone number on shift cards, and by indicating to co-workers her availability via "facebook" messages. (ECF Nos. 70-2 at 69-71; 70-4, at ¶¶ 5-6 [Macioce Decl.]).

         The document described as Macioce's "raw punches, " meaning shifts Macioce actually worked, reveals that after Macioce returned from her July 2014 vacation, she ultimately was scheduled for and worked shifts as follows:

• For the workweek beginning July 31, 2014, she was scheduled for and worked three shifts-one on August 3rd, 4th and 5th.
• For the workweek beginning August 7, 2014, she was added to the schedule and worked two shifts-one on August 9th and 10th.
• For the workweek beginning August 14, 2014, she was added to the schedule for three shifts, but worked only the shifts on August 17th and 18th, 2017.[10]
• For the workweek beginning August 21, 2014, she was added to the schedule and worked one shift on August 22nd.
• For the workweeks beginning August 29, September 4, and September 11. 2014, she was not added to the schedule for any shifts.

(ECF No. 70-12 at 3).

         After having her baby, Macioce decided not to return to work at Bob Evans. (Macioce Depo at 48); (ECF No. 72, Bob Evans' Separate Concise Statement of Undisputed Facts in Response to EEOC's Motion for Summary Judgment, ¶ 43). Subsequently, Moreau ceased what he referred to as his "practice" of telling a person taking a leave of absence that he would change their availability in the system to zero. (Moreau Dep. at 75). Moreau resigned employment with Bob Evans on October 27, 2016. (ECF No. 74-4 at ¶ 10).

         A. Bob Evans' Anti-Discrimination Policy

         Bob Evans' February 2013 employee handbook, in its section labelled "Equal Employment Opportunity Policy, " states:

Bob Evans Farms, LLC offers equal employment opportunity to all job applicants and gives all employees equal consideration in our employment practices. Bob Evans abides by all local, state, and federal laws regarding equal employment opportunity. Bob Evans will . . . administer all personnel actions such as compensation, benefits, promotions, transfers, and all other aspects of employment in a consistent and non-discriminating manner.
If you believe that you have been subject to conduct which violates this policy, or if you have questions concerning this policy, please contact any member of the management team, the Human Resources Department, or use the Open Door Policy.

(ECF No. 58-10 at 3). The "Open Door Policy" in the 2013 Handbook provides that it encourages employees to raise concerns and address situations with their supervisor or a member of human resources, including decisions the employee thinks are "unfair." (ECF No. 58-10 at 3). The Bob Evans May 2014 employee handbook includes the virtually identical "Equal Employment Policy" and "Open Door Policy, " (ECF No. 64-4 at 6), but it also includes a section labelled as its "Harassment & Discrimination Policy, " that further provides:

Harassment, discrimination, or retaliation of any kind toward fellow employees, guests, or business affiliates which is based on race, color, religion, genetic information, gender, national origin, age, disability, citizenship, military status, ancestry, sexual orientation, or any other protected characteristic is prohibited.
If you feel you are the subject of harassment, discrimination, or retaliation, please report it to your supervisor, the Human Resources Department or use the Open Door Policy. Where investigation confirms the allegation, prompt disciplinary action will be taken, up to and including termination of the offending employee(s).

(ECF No. 64-4 at 5; ECF No. 72, at ¶ 23). Prohibited discrimination on the specific basis of pregnancy is not mentioned in any of the policy provisions.

         Moreau was responsible for ensuring that employees at the West Mifflin Bob Evans were aware of company policies and procedures, which included him going over the open-door, anti-harassment and anti-discrimination policies with them. (ECF No. 58-3 at 6-7 [Moreau Dep. at 35-36]). He was required to acknowledge receipt of the Bob Evans Employee Handbook, (ECF No. 64-3 at 5-6 [Moreau Dep. at 12, 23]), but did not recall any video training or anyone else coming to the restaurant to do in-person staff training. (ECF No. 58-3 at 8 [Moreau Dep. at 37]). Macioce could not recall taking anti-discrimination policy training or that Bob Evans had antidiscrimination and open door policies, yet she acknowledged receipt and review of the May 2014 Handbook by her signature dated April 30, 2014. (ECF Nos. 64-1 at 18; 64-4 at 8; 70-4, at ¶ 3).


         As to its motion for summary judgment on liability, Bob Evans asserts that the EEOC cannot raise an inference of discriminatory motive under the familiar burden-shifting framework for indirect evidence cases and also cannot establish the existence of an adverse employment action. In no uncertain terms, Bob Evans insists that its General Manager Moreau removed Macioce from the automated employee scheduling system not because of Macioce's pregnancy, but "because he believed her due date was imminent and, consequently, her attendance in the near future was unpredictable." (ECF No. 65 at 1). Bob Evans further states that "the sole reason Moreau took Macioce off the schedule was due to the unpredictability of her attendance, " (ECF No. 65 at 13), and her "'imminent', unpredictable leave." (ECF No. 65 at 14). Bob E/vans also argues that Moreau made the decision to remove Macioce from the automated scheduling system "for the predictability of the schedule" to "ensure the restaurant's staffing needs." (ECF No. 65 at 14).

         In contrast, the EEOC contends that there is no genuine issue of fact on this point, and that the undisputed direct evidence, as further confirmed by the position of Bob Evans in its briefing, unequivocally establishes as a matter of law intentional discrimination against Macioce based on her pregnancy.

         A. The Pregnancy Discrimination Act ("PDA")

         Title VII prohibits discrimination in employment "because of sex." 42 U.S.C. § 2000e-2(a). Specifically, § 2000e-2(a) provides:

         (a) Employer practices

         It shall be an unlawful employment practice for an employer-

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a).

         The PDA, 42 U.S.C. § 2000e(k), was passed by Congress in response to the Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), in which the Court had held that discrimination "because of pregnancy" was not prohibited discrimination "because of sex" under Title VII. "The PDA specifies that sex discrimination includes discrimination on the basis of pregnancy." California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 277 (1987).

         The United States Supreme Court explained in Guerra that:

[r]ather than limiting existing Title VII principles and objectives, the PDA extends them to cover pregnancy. As Senator Williams, a sponsor of the Act, stated: "The entire thrust... behind this legislation is to guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life." 123 Cong. Rec. 29658 (1977).

Guerra, 479 U.S. at 288-89. Specifically, Congress amended Title VII to add a definition of the term "because of sex." Section 2000e(k) thus provides:

§ 2000e. Definitions
For the purposes of this ...

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