United States District Court, W.D. Pennsylvania
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
BOB EVANS FARMS, LLC, Defendant.
R. HORNAK, UNITED STATES DISTRICT JUDGE.
the rare lawsuit in which the record entitles a plaintiff to
the grant of summary judgment in its favor. This is one of
case stems from the removal of Hayley Nadalin, nee Macioce
("Macioce"),  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.
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).
STANDARD ON SUMMARY JUDGMENT
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).
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).
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).
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).
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.
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)).
following material facts are undisputed 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).
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).
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
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]).
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"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.
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]). 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 ¶
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]).
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,
¶ 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
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,  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, ¶
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.
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]).
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).
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),  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]).
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).
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.]).
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,
• For the workweek beginning August 21, 2014, she was
added to the schedule and worked one shift on August
• For the workweeks beginning August 29, September 4,
and September 11. 2014, she was not added to the schedule for
(ECF No. 70-12 at 3).
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).
Bob Evans' Anti-Discrimination Policy
Evans' February 2013 employee handbook, in its section
labelled "Equal Employment Opportunity Policy, "
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
(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.
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).
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).
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
The Pregnancy Discrimination Act
VII prohibits discrimination in employment "because of
sex." 42 U.S.C. § 2000e-2(a). Specifically, §
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
42 U.S.C. § 2000e-2(a).
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).
United States Supreme Court explained in Guerra
[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
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 ...