Reid v. Sleepy's, LLC

Filing 47

MEMORANDUM (Order to follow as separate docket entry) re 27 MOTION for Summary Judgment filed by Sleepy's, LLC.Signed by Honorable A. Richard Caputo on 6/16/16. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARY REID,
CIVIL ACTION NO. 3:14-CV-2006

Plaintiff,
v.

(JUDGE CAPUTO)

SLEEPY’S, LLC,
Defendant.
MEMORANDUM
Presently before the Court is a Motion for Summary Judgment (Doc. 27) filed by
Defendant Sleepy’s, LLC (“Defendant” or “Sleepy’s”). In her Complaint, Plaintiff Mary Reid
(“Plaintiff” or “Ms. Reid”) asserts hostile work environment, sex discrimination, and retaliation
claims against Defendant pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq. (“Title VII”) and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.
(“PHRA”). For the reasons that follow, Defendant’s motion will be granted. Judgment will
be entered in favor of Defendant on all claims.
I. Background
Ms. Reid was first hired to work at Sleepy’s as a store assistant in March of 2007. In
November of 2007, she was promoted to Mattress Professional, which is the position she
held until her termination on April 27, 2013. Ms. Reid worked primarily in the R-24 Region.
She was initially assigned to the DC showroom, which is a clearance center, but she hoped
to eventually work at the DZ showroom, which is a higher-end, larger volume location and
one of the most lucrative stores in the region.

Throughout her time as a Mattress

Professional, the Regional Manager assigned to the R-24 Region was Thomas Jurlando.
Mattress Professionals, like Ms. Reid, are directly supervised by District Managers.
From January 1, 2012 until November 30, 2012, Ms. Reid’s District Manager (“DM”) was
Henry Passion. From December 1, 2012 until April 27, 2013, her DM was Brian Mucci.
Between November 23, 2012 and April 27, 2013, Ron Roberts also worked as a
Mattress Professional. At some point prior to July of 2011, Mr. Roberts was a District
Manager. However, around July of 2011, he was demoted to a Mattress Professional.

Ms. Reid asserts that Mr. Roberts harassed her on at least five (5) occasions during
her time at Sleepy’s. The first time occurred when Mr. Roberts called her while she was
working at one of Sleepy’s showrooms and he was driving home. Mr. Roberts told Ms. Reid
that he was sexually frustrated with his wife and that he had to finish himself off using his
wife’s hand. When Mr. Roberts told her this, Ms. Reid laughed at him.
The second time occurred during a tour of the Simmons plant in Hazleton, which is
where Sleepy’s mattresses are manufactured. During this tour, Mr. Roberts propositioned
Ms. Reid. This took place some time after July 2011. After Mr. Roberts propositioned her,
Ms. Reid laughed and said “No thanks.”
The third time also took place in 2011. Mr. Roberts told Ms. Reid that “Your ass looks
good in those pants, but you need to tighten it up,” and then proceeded to show her
exercises that she could do. Ms. Reid testified that although she “didn’t appreciate the fact
that he told me my ass was sagging,” she was not offended by this comment.
The fourth time, which also took place in 2011, occurred when Mr. Roberts told Ms.
Reid that she looked great after she had lost some weight. Ms. Reid testified that she was
not offended by this comment.
The fifth time, which will hereinafter be referred to as the “Black Friday Incident,”
occurred on Friday, November 23, 2012. On that day, Ms. Reid’s friend, Nancy Prendergast,
visited Ms. Reid at the DZ showroom with Nancy’s friend, Trish. Although Nancy and Trish
were talking to Ms. Reid on the opposite side of the showroom from where Mr. Roberts was
working, he came over to them. Nancy had previously met Ron, but Ms. Reid introduced
Trish. Nancy asked Mr. Roberts if a sex partner could use the same dildo on a different sex
partner. After Nancy asked Mr. Roberts the question, Ms. Reid left to assist a customer that
had entered the store. Mr. Roberts continued talking with Nancy and Trish after Ms. Reid
left, responding that it was ok to use the sex toys if they were “washable.”
An hour or two after Nancy and Trish left, Mr. Roberts propositioned Ms. Reid, asking
her to engage in a relationship that he described as being “fuck buddies.” He suggested that
the two of them go to a hotel to have sex, and then described what he wanted to do. Ms.
2

Reid declined and told him that she was not interested. Mr. Roberts also explained how he
liked her body and how it changed after she lost weight. After telling him no, Ms. Reid
continued working in the showroom with Mr. Roberts for the remainder of her shift, but
stayed on the other side of the showroom away from him for the rest of the day.
Initially, Ms. Reid did not intend to report this incident because she feared retaliation.
She knew that other women had complained about Mr. Roberts in the past, but did not
believe that any of them were still employed with Sleepy’s. However, she ultimately had a
discussion about the incident with her DM, Harry Passion, who asked her what had
happened between her and Mr. Roberts. Ms. Reid initially told Mr. Passion that nothing had
happened, but then told him that she would not sleep with Mr. Roberts:
Q.
A.

What did you tell Mr. Passion during this conversation?
He initially asked me what happened with me and Ron. I said,
“Nothing.” He again asked, you know, “What happened? Something
happened. Ron doesn’t want you in the store no more.”
And my exact response was, “I won’t sleep with him.”
He asked me exactly what happened; and Harry’s response was,
“Again he’s doing this?”

(Doc. 36-6, Pl. Ex. 2, Mary Reid Dep. Tr., at 207:23-208:7.) During this conversation, Ms.
Reid asked Mr. Passion “not to report it.” (Id. at 208:12-15.) Mr. Passion asked Ms. Reid
what she wanted him to do about this alleged incident with Mr. Roberts, to which she
responded that she would think about it and get back to him. However, Ms. Reid never got
back to him. Sleepy’s ultimately fired Mr. Passion for not reporting Ms. Reid’s complaint.
On November 30, 2012, Ms. Reid called HR Director, Kerri DiGirolamo, to report that
Mr. Roberts had propositioned her. Ms. DiGirolamo advised that she would address the
matter with management and get back to her. Mr. Roberts was immediately suspended by
Mr. Jurlando pending an investigation into Ms. Reid’s complaint. An investigation was
conducted by Brooke Furey, from HR. Ms. Reid acknowledges that she had no complaints
about Ms. Furey’s investigation. After the investigation, it was decided that Mr. Roberts and
Ms. Reid would no longer work in the same showroom together, as Ms. Reid expressed
concerns about working in the same showroom as Mr. Roberts, but confirmed that she was
comfortable working in the same region as Mr. Roberts. It was also decided that Mr. Roberts
3

should return to work from his suspension on December 8, 2012. This decision was made
based on the credibility of Mr. Roberts’ responses, his demeanor, e-mails received in support
of Mr. Roberts from other employees, and Ms. Reid’s admission that she was engaging in
inappropriate conversations in the workplace.

Additionally, Ms. Furey was unable to

corroborate Ms. Reid’s claims about Mr. Roberts and determined that Ms. Reid had initiated
inappropriate talk in the workplace.
This was not the first time Ms. Reid had complained about Mr. Roberts. In November
of 2008, she complained to HR about Mr. Roberts’ “mistreatment and derogatory remarks
and behavior.” (Doc. 36-6, Pl. Ex. A, at EEOC 0329.) Specifically, she complained that Mr.
Roberts berated her in a meeting in front of numerous other employees to the point that she
was crying hysterically. (Id.)
Mr. Roberts has been the subject of other complaints by female employees while
working at Sleepy’s. Some of these complaints are documented in prior litigation against
Sleepy’s, Dileo, now by marriage, Chiarelli, v. Sleepy’s, 3:11-cv-1928 (M.D. Pa.) [hereinafter
“Chiarelli Litigation”], which involved sexual harassment, hostile work environment, and
retaliation claims brought by a former female employee, Mary Ann Chiarelli. Ms. Reid was
identified as a witness, subpoenaed, and deposed by Sleepy’s in the Chiraelli Litigation on
March 21, 2013. The Chiarelli Litigation was ultimately resolved through a settlement.
Although Mr. Roberts held the same title as Ms. Reid, Ms. Reid believed that he had
influence on Regional Managers and was able to determine where he worked and who he
worked with, which was not something that other Mattress Professionals were able to do.
Ms. Reid believed that despite Mr. Roberts’ demotion to Mattress Professional, he was still
able to influence some of the other DMs because he was friends with them. Ms. Reid was
concerned that other women who have complained about Mr. Roberts in the past, including
Niomy Quiles, Mary Ann Dileo, and Regina Moran, were no longer employed with Sleepy’s.
Ms. Reid believed that she was one of the only women who had reported Mr. Roberts but
was still employed by Sleepy’s.
On February 4, 2013, Ms. Reid filed a Charge of Discrimination with the Equal
4

Employment Opportunity Commission (“EEOC”), dual-filed with the Pennsylvania Human
Relations Commission (“PHRC”). In this Charge, Ms. Reid explained the Black Friday
Incident and also indicated that she had witnessed Mr. Roberts proposition another
employee, Jackie Brieling, and observed him pull down the front of her shirt to look down her
shirt. She heard Mr. Roberts comment on the “nice view” when he was looking at Ms.
Brieling’s backside. On March 4, 2013, Mr. Jurlando participated in a conference call with
executive vice-president Dan Thigpen, DM Brian Mucci, and Brooke Furey and Laura Furnari
from HR to discuss Ms. Reid’s complaint.
On March 9, 2013, Ms. Reid contacted her DM Brian Mucci to report computer issues
that were causing her problems in finalizing two (2) tickets. When Mattress Professionals
sell a mattress, they are required to issue an invoice to the customer. Customers who elect
to pick up their mattresses then may take that invoice, either on the date of sale or a later
date, to a Sleepy’s location, where the customer will receive the mattress. That same day,
the Mattress Professional is required to “finalize” the invoice in the computer system. This
requirement of same-day finalization of a sale in the computer systems serves two goals:
(1) it ensures that the customer is given only as many mattresses as were purchased, since
until a ticket is finalized, an unscrupulous customer could take the same invoice to two
different locations and obtain two mattresses for the price of one, and (2) Sleepy’s Mattress
Professionals are paid bonuses based on finalized sales on a weekly basis. A Mattress
Professional who deliberately fails to finalize an invoice on the date of sale could manipulate
the bonus process by using an invoice from Week 1 toward a bonus for Week 2. Sleepy’s
considers such “bumping” of an invoice to be devious behavior. Saturday, March 9, 2013,
was the last day of the week for purposes of awarding bonuses. On that day, Ms. Reid failed
to finalize two invoices. She told Mr. Mucci that she was having problems logging in, and he
told her to contact the IT department. Ms. Reid recalls contacting the IT department, but
does not recall what happened. She only recalls that the problem was not resolved and that
she does not think she logged out that night. The next morning, Ms. Reid called Mr. Mucci
to tell him that there were two (2) unfinalized invoices at the DC showroom because of her
5

computer issues. Mr. Mucci reported the issue to Mr. Jurlando, who contacted the help desk
to confirm Ms. Reid’s account. However, he was unable to produce a record of the call. Ms.
Reid was issued a written warning for failing to finalize these tickets by Mr. Jurlando on
March 30, 2013.
On April 13, 2013, Anthony Cerullo, a new trainee, e-mailed Mr. Jurlando to advise
him of an issue regarding Ms. Reid that occurred while he was working with her in the DZ
showroom a few days earlier, on April 11, 2013. Specifically, he complained that she took
his photograph with her phone, and then told him that she was going to send the photograph
to all of the other sales people in the district to make sure he didn’t “shop” them.1 He
complained that he was taken back that his photograph was being circulated to people he
had never met. He also complained that she was “smoking in front of the store near the
door,” which Sleepy’s employees are prohibited from doing,2 and that “the F-Bomb was
dropped a few times.” (Doc. 36-44, Pl. Ex. 26, at D004297.) However, Mr. Cerullo noted in
his e-mail that he was not offended by the profanity.
Although protocol dictated that HR would follow up with Mr. Cerullo on Monday, they
were not able to get in touch with him that day. HR did not speak to him about the incident
until the next day that he was scheduled for work, which was Wednesday, April 17, 2013.
On April 18, 2013, Laura Furnari, HR Specialist, called Ms. Reid to address various
concerns that Defendant had about Ms. Reid. Ms. Furnari told Ms. Reid that it had been
brought to her attention that Ms. Reid was smoking in front of the showroom and that Ms.
Reid was continuing to use profanities despite being warned against it back in December.
Ms. Furnari also inquired about the photograph incident with Mr. Cerullo. Regarding
smoking, Ms. Reid admitted that she was smoking outside the front of the showroom but that

1

“Shopping” someone occurs when an employee poses as a customer to evaluate
whether a Sleepy’s salesperson is following a company-mandated protocol.

2

Sleepy’s employees are prohibited from smoking in showrooms and in the
entrances and exits. (Doc. 36-18, Pl. Ex. 10, Thomas Jurlando Dep. Tr., at 74:875:12; Doc. 36-42, Pl. Ex. 24, Sleepy’s Handbook, at D003018.)
6

she stood off to the side by a pillar so that she was not right next to the door. Ms. Furnari
informed Ms. Reid that she had to make sure to stay far enough away from the front door
so that it does not make customers uncomfortable because it did not make for a good
appearance. Ms. Reid told Ms. Furnari that she understood. Regarding profanities, Ms.
Reid admitted that “yes, I slip. I try to curb it, but it slips.” (Doc. 36-38, Pl. Ex. 20, at
D000013.) Ms. Furnari informed Ms. Reid that “it cannot slip” and that she had been made
aware of this before and must immediately stop using profanities, to which Ms. Reid said
okay. (Id.) Regarding the photograph incident with Mr. Cerullo, Ms. Reid admitted to taking
his photograph, and said that “yes, it was more of a joke between me and a coworker . . . It
is stupid goofy stuff.” (Id.) Shortly after this call, DM Brian Mucci received a call from Valerie
Ferrence, stating that Ms. Reid called her to say that she did not want to split commissions
with her next week because she “ratted [her] out to HR.” (Id. at D000014.) Ms. Ferrence
denied doing so, to which Ms. Reid responded, “well then it must have been the new guy
(Anthony Cerullo).” (Id. at D000014.) On April 18, 2013, Ms. Reid was issued a final written
warning for the incidents detailed in Mr. Cerullo’s complaint.
On April 27, 2013, Mr. Jurlando again caught Ms. Reid smoking outside of the DC
showroom. Mr. Jurlando pulled up to Ms. Reid and Michelle Collins, another employee who
was outside with her, and told her that she was not permitted to smoke in front of the
showroom. Mr. Jurlando then left, contacted Kerri DiGirolamo, and spoke to Sleepy’s inhouse counsel, and then returned and fired Ms. Reid. Although the fact that Ms. Reid was
smoking outside of the DC showroom played into Mr. Jurlando’s decision to fire her, it was
not the only reason. In explaining why he decided to terminate Ms. Reid’s employment, Mr.
Jurlando explained that he was bothered by her pattern of gross insubordination:
Well, I mean, there comes a certain point that enough is enough. I mean, I’m
a very lenient guy, I’m a fair manager, anyone that works with me will tell you
that. But there comes a point where, you know, someone slaps you in the face
so many times that, again, enough is enough.
It wasn’t even the fact that she was smoking in front of the store, it was the fact
that she repeatedly just gross insubordination [sic] over and over and over
again of breaking policies proving that she just didn’t care about the rules and
she wasn’t going to follow them. And she had – that was her attitude. What
are you going to do to me? Chance after chance, write-up after write-up, you
7

know, written warning, final warnings. And something she had been previously
written up for, again, she just didn’t care. I had more important things on my
plate than Mary Reid smoking in front of the store. That’s the truth. My father
was ill in the hospital, my family was there with him, I have a job, so I need to
get work done. So I’m going to the store to try to balance both and handle
both of my responsibilities, the last thing I wanted to do was have to deal with,
you know, someone has that the ability [sic] to follow the rules and keep her
job. She left me no choice.
(Doc. 36-18, Pl. Ex. 10, Thomas Jurlando Dep. Tr., at 72:16-73:17.)
Regarding the smoking accusation, Ms. Reid testified that she was smoking ten (10)
to fifteen (15) feet to the left of the front entrance to the DC showroom, at the side of the
building. (Doc. 36-6, Pl. Ex. 2, Mary Reid Dep. Tr., at 106:2-107:23.) She believed that
smoking in this location did not violate any policies because the week or two before, she had
walked to the corner of the front and side of the store and asked Mr. Mucci if she could
smoke there, to which she testified he said was okay. (Doc. 36-6, Pl. Ex. 2, Mary Reid Dep.
Tr., at 140:23-141:22.) Ms. Reid also claims that she had smoked in that same location with
Bill Gruman and Thomas Jurlando before, and was not disciplined for it. (Id. at 128:5-13.)
Regarding the profanity accusation, Mr. Jurlando cannot recall if he had ever
disciplined anyone for using profanity other than Ms. Reid, but noted that he could not recall
having seen any other employee use profanity on more than one occasion other than Ms.
Reid. (Doc. 36-18, Pl. Ex. 10, Thomas Jurlando Dep. Tr., at 106:24-108:4, 107:9-19.)
On June 26, 2013, after she was fired, Ms. Reid filed another Charge of
Discrimination for the final written warning and termination. On August 4, 2014, the EEOC
issued Right to Sue letters for both Charges. On October 16, 2014, Ms. Reid filed her
Complaint. (Doc. 1.) Defendant filed an Answer on January 7, 2015 (Doc. 10), and on
November 25, 2015, Defendant filed the instant Motion for Summary Judgment (Doc. 27).
This motion has been fully briefed and is now ripe for disposition.
II. Discussion
A.

Legal Standard
Summary judgment shall be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
8

Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting
Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if proof of its
existence or nonexistence might affect the outcome of the suit under the applicable
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that
it is entitled to judgment as a matter of law. See Edelman v. Comm’r of Soc. Sec., 83 F.3d
68, 70 (3d Cir. 1996). Where, however, there is a disputed issue of material fact, summary
judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S.
at 247-48. An issue of material fact is genuine if “a reasonable jury could return a verdict for
the nonmoving party.” Id. at 248. Where there is a material fact in dispute, the moving party
has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2)
the moving party is entitled to judgment as a matter of law. See Howard Hess Dental Labs.,
Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir. 2010). The moving party may present
its own evidence or, where the non-moving party has the burden of proof, simply point out
to the court that “the nonmoving party has failed to make a sufficient showing on an essential
element of her case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When considering whether there are genuine issues of material fact, the court is
required to “examine the evidence of record in the light most favorable to the party opposing
summary judgment, and resolve all reasonable inferences in that party's favor.” Wishkin v.
Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the moving party has satisfied its initial
burden, the burden shifts to the non-moving party to either present affirmative evidence
supporting its version of the material facts or to refute the moving party's contention that the

9

facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57. The Court
need not accept mere conclusory allegations, whether they are made in the complaint or a
sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
In order to prevail on a motion for summary judgment, the non-moving party must
show “specific facts such that a reasonable jury could find in that party's favor, thereby
establishing a genuine issue of fact for trial.” Galli v. N.J. Meadowlands Comm'n, 490 F.3d
265, 270 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e)). Although the non-moving party’s
evidence may be either direct or circumstantial, and “need not be as great as a
preponderance, the evidence must be more than a scintilla.” Id. (quoting Hugh v. Butler
Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for summary
judgment, “the judge's function is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S.
at 249. There is no issue for trial unless there is “sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249. “If the evidence
is merely colorable or is not significantly probative, summary judgment may be granted. Id.
B.

Motion to Strike
In opposing Defendant’s Motion for Summary Judgment, Plaintiff filed a brief in

opposition (Doc. 35) as well as a ninety-page Counterstatement of Material Facts (Doc. 36)
(“Counterstatement”). Defendant filed a motion to strike Plaintiff’s Counterstatement for
failure to comply with Local Rule 56.1. (Doc. 38.) Specifically, Defendant argues that the
Counterstatement is not “short and concise” as required by Rule 56.1 and is muddled with
argument, equivocations, or non-responsive assertions. Defendant requests that this Court
strike Plaintiff’s Counterstatement and deem Defendant’s submitted facts as admitted.
Rulings on motions to strike are within the sound discretion of the district court.
Matson-Forester v. Allstate Ins. Co., No. 12-cv-1838, 2014 WL 580267, at *3 (M.D. Pa. Feb.

10

12, 2014). Because striking a pleading is viewed as a drastic remedy, such motions are
generally disfavored. Newman Bros. Co. v. Albion Eng’g Co., 299 F.R.D. 90, 94 (D.N.J.
2014). Even when the pleading is “redundant, immaterial, impertinent, or scandalous, a
motion to strike should not be granted unless the presence of the surplusage will prejudice
the adverse party.” Id. (citation and internal quotation marks omitted).
Here, Defendant is correct that much of Plaintiff’s ninety (90) page Counterstatement,
which was filed in response to Defendant’s nineteen (19) page Statement of Facts, is nonresponsive, irrelevant, and argumentative. However, it does not so clearly violate Local Rule
56.1 or prejudice Defendant in such a way that justifies being stricken from the record or
deeming the facts in Defendant’s Statement as admitted. Additionally, the argumentative
statements found in Plaintiff’s Counterstatement are not as inflammatory as the ones found
and stricken in the cases cited by Defendant. For example, in Park v. Veasie, No. 3:09-cv2177, 2011 WL 1831708 (M.D. Pa. May 11, 2011), Judge Rambo struck both parties’
statements of material facts because they were muddled with “inflammatory and
argumentative phrases,” such as the following:
2.

Compounding their outrageous acts, the defendants unnecessarily
handcuffed Mr. Park, inexplicably charged him with possession of
drug paraphernalia, and, for good measure, had his seven year old
son taken into “protective custody” solely on the basis of wild,
imaginary, and wholly unsubstantiated concerns for his “safety.”

Id. at *2 (citing the plaintiffs’ statement of material facts).
In contrast, Plaintiff’s Counterstatement here, though lengthy, is not muddled with
inflammatory phrases such as “outrageous acts” or “wild, imaginary, and wholly
unsubstantiated concerns.” Although Plaintiff’s Counterstatement does include superfluous
responses and fails to comply with Local Rule 56.1, the violation is not so extreme or
prejudicial so as to justify being stricken from the record. See, e.g., Tsosie v. Dunbar, No.
3-cv-10-2104, 2012 WL 1191642, at *12 n.2 (M.D. Pa. Apr. 10, 2012) (declining to strike the
counterstatement of facts, even though it failed to comply with Local Rule 56.1, and
11

reviewing the submission for relevant disputes of material fact); see also Matson-Forester,
2014 WL 580267, at *3 (acknowledging that although the defendant’s statement of facts
failed to comply with Local Rule 56.1, it was “suitable” enough for “direct and accurate
consideration of the [summary judgment] motion” and denying the motion to strike); Breslin
v. Dickinson Twp., No. 9-cv-1396, 2012 WL 7177278, at *3 (M.D. Pa. Mar. 23, 2012)
(recommending that the motion to strike be denied and reviewing the parties’ submission,
notwithstanding “the Plaintiffs’ principal counter-statement of facts,” which “is an 118 page
exegesis,” that does not “in any way comport[] with Local Rule 56.1's requirement that the
statement be ‘a separate, short and concise statement of the material facts’”). Moreover,
deeming certain facts admitted, as requested by Defendant, “will not assist the court with the
‘direct and accurate’ consideration of the underlying summary judgment motion because it
is possible that some of the facts deemed admitted might be dispositive to some of the
serious claims at issue here.” Park, 2011 WL 1831708, at *4. Accordingly, Defendant’s
Motion to Strike Plaintiff’s Counterstatement will be denied.
C.

Hostile Work Environment
First, Plaintiff claims that Defendant violated Title VII and the PHRA by subjecting her

to a hostile work environment. To prevail on this claim, Plaintiff must show that (1) she
suffered intentional discrimination because of her sex, (2) the discrimination was severe or
pervasive, (3) the discrimination detrimentally affected her, (4) the discrimination would
detrimentally affect a reasonable person of the same sex in that position, and (5) respondeat
superior liability exists. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).
Defendant seeks summary judgment on this claim on several grounds.

First,

Defendant argues that Plaintiff cannot satisfy the “severe or pervasive” element because
only one (1) incident of alleged harassment occurred within the limitations period, and that
this one (1) incident alone is insufficient as a matter of law to establish that the harassment
was “severe or pervasive.”

Second, Defendant argues that there is no evidence

demonstrating that the alleged harassment detrimentally affected Plaintiff’s work or personal
life. Third, Defendant argues that no jury could conclude that respondeat superior liability
12

exists because Defendant took prompt remedial action once it learned of the hostile
environment. Because I find that there is insufficient evidence to satisfy the “severe or
pervasive” element, Defendant’s motion for summary judgment on this claim will be granted.
1.

Five Alleged Incidents of Harassment Against Plaintiff

Here, Plaintiff claims that Mr. Roberts made inappropriate, sexual comments to her
on at least five (5) specific occasions between 2008 and November 23, 2012. Defendant
argues that only one (1) of these occasions occurred within the limitations period, i.e., within
three hundred (300) days of Plaintiff’s filing of her Charge of Discrimination on January 31,
2013. This is the Black Friday Incident that occurred on November 23, 2012, where Mr.
Roberts propositioned Plaintiff. Defendant argues that this incident alone fails as a matter
of law to satisfy the “severe or pervasive” element of Plaintiff’s hostile work environment
claim. The remaining comments occurred in 2008 and 2011, outside of the limitations
period. In response, Plaintiff disputes that this is the only incident that occurred within the
limitations period and asserts that Mr. Roberts has made numerous inappropriate comments
to her during the course of their employment together. Additionally, Plaintiff invokes the
continuing violation theory to assert that other incidents falling outside of her limitations
period should also be considered in her hostile work environment claim.
First, the only evidence in the record that Plaintiff points to of Mr. Roberts making
more than one (1) inappropriate comment to her within the limitations period is her own
deposition testimony. (See Doc. 36, Counterstatement, ¶ 15.) However, this testimony does
not actually show that other inappropriate comments were made within the limitations period.
First, Plaintiff cites to her deposition testimony from the Chiarelli Litigation:
Q.
A.
Q.
A.

Okay. The next question is, give me – is there another situation in
which Ron Roberts behaved inappropriately in a sexual way towards
you?
Other than 2012?
Yes, prior to when we get to the 2012 event. I’m talking about prior to
that.
There was so many things mentioned. He said stuff over the years.
Most of it you just kind of brushed it off. The one meeting I remember
being at, I came in in yoga pants; and he said, you know, “Your ass
looks good in those pants, but you need to tighten it up.”
13

(Doc. 36-20, Pl. Ex. 11, Mary Reid Chiarelli Dep. Tr., at 48:10-22.) Although Plaintiff testified
that there “was so many things,” she does not testify that they occurred within the limitations
period. And even if she did, there is no evidence or description of what these “many things”
were to determine whether they were severe or pervasive.
Second, Plaintiff cites to her deposition testimony from this litigation. However, she
cites only the following excerpt, which actually shows that there were not more than the five
(5) separate occasions listed earlier:
Q.
A.
Q.
A.

Other than the [five] items I listed, do you remember testifying that there
were no other occasions when Mr. Roberts made what you regarded as
an inappropriate sexual comment?
At the time, that’s all I recalled. That’s what I said.
As we sit here today in 2015, can you recall any other occasions when
Mr. Roberts made an inappropriate sexual comment to you?
No.

(Doc. 36-6, Pl. Ex. 2, Mary Reid Dep. Tr., at 256:5-14.) Only one (1) of these five (5)
occasions, the Black Friday Incident, occurred within the limitations period. Therefore, this
testimony also fails to show that there was more than one (1) instance of harassment that
occurred within the limitations period.
Additionally, even if Plaintiff’s own testimony established that other incidents of
harassment occurred within the limitations period, which it does not, her uncorroborated
testimony alone is insufficient to survive summary judgment. See Solomon v. Society of
Automotive Eng’rs, 41 F. App’x 585, 586 (3d Cir. 2002) (“The District Court correctly rejected
all of these [discrimination] allegations, stating that the only evidence in support of these
claims was Solomon’s own testimony. . . . [A] plaintiff cannot rely on unsupported assertions,
speculation, or conclusory allegations to avoid a motion for summary judgment.); Cridland
v. Kmart Corp., 929 F. Supp. 2d 377, 389-90 (E.D. Pa. 2013) (“[U]nder Third Circuit
precedent, a plaintiff’s uncorroborated testimony about discriminatory treatment cannot–on
its own–demonstrate invidious intent at the summary judgment stage.”); Fusco v. Bucks
Cnty. of Pa., No. 08-2082, 2009 WL 4911938, at *11 (E.D. Pa. Dec. 18, 2009) (“The Plaintiff
offers no support, beyond her own testimony, to corroborate her claims.”). Accordingly,
given the insufficient evidence of harassment toward Plaintiff that occurred within the
14

limitations period, I turn to Plaintiff’s next contention that under the continuing violation
theory, these otherwise time-barred instances of harassment should still be considered.
2.

Continuing Violation Theory

Under the “continuing violation” theory, “discriminatory acts that are not individually
actionable may be aggregated to make out a hostile work environment claim.” Mandel, 706
F.3d at 165. Such acts “can occur at any time so long as they are linked in a pattern of
actions which continues into the applicable limitations period.” Id. (citations omitted); see
also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002) (explaining that a court
may consider the “entire scope of a hostile work environment claim . . . so long as any act
contributing to that hostile environment takes place within the statutory time period”). Here,
that period is three hundred (300) days before Plaintiff filed her EEOC claim on January 31,
2013. Rush v. Scott Specialty Gases, 113 F.3d 476, 481 (3d Cir. 1997), abrogated on other
grounds. To allege a continuing violation, Plaintiff “must show that all acts which constitute
the claim are part of the same unlawful employment practice and that at least one act falls
within the applicable limitations period.” Mandel, 706 F.3d at 165-66.
In support of her continuing violation theory, Plaintiff asserts that the Third Circuit
has adopted the Fifth Circuit’s three-factor test to distinguish between the occurrence of
isolated acts of discrimination and a persistent, ongoing pattern: (1) subject matter, (2)
frequency, and (3) permanence. (Doc. 35, at 22-23 (citing West v. Phila. Elec. Co., 45 F.3d
744, 754-55 (3d Cir. 1995)).) However, the Third Circuit has since disavowed this test,
explaining that the Supreme Court has explicitly rejected the permanence requirement. See
Mandel, 706 F.3d at 166 (citing Morgan, 536 U.S. 101). The Third Circuit has defined
permanence as “whether the nature of the violations should trigger the employee’s
awareness of the need to assert her rights and whether the consequences of the act would
continue even in the absence of a continuing intent to discriminate.” Id. at 166 n.3.
For example, in Mandel, the plaintiff claimed that, throughout her employment, for a
period of almost eleven (11) years, she was sexually harassed and discriminated against by
male managers and supervisors, such as being referred to as“darling,” “the woman,” “fluffy,”
15

“missy,” “hon,” and “toots”; having her body and clothing commented on; being told that she
was “foolish not to use [her] assets”; being told by a Systems Manager, when she asked for
directions to a meeting at corporate headquarters, that “[f]or you . . . the meeting will start
at my house tonight and we will conclude our part of it tomorrow morning–maybe . . . we may
need to postpone the meeting with everyone else a few hours to finish up . . . ”; being told
by a manager that he fantasized about her while he was having sex with his wife; being told
in a review by a Managing Director that she was “too female”; being told to clean the
bathroom and make coffee when male employees were not asked to perform such tasks;
and being paid less and given less vacation time than a male manager. Id. at 161. Although
only one (1) of the alleged incidents occurred within the statute of limitations (i.e., being
called a “bitch” during a meeting), the Third Circuit explained that “many of the acts that
occurred prior to the applicable limitations period involved similar conduct by the same
individuals, suggesting a persistent, ongoing pattern.” Id. at 166-67 (emphasis added).
Therefore, the Third Circuit reversed the grant of summary judgment for the defendant on
the hostile work environment claim and remanded the case for the district court to reexamine
the scope of incidents properly considered part of the continuing violation. Id. at 167.
However, the continuing violation theory does not apply if the alleged incidents outside
of the limitations period are discrete acts of alleged discrimination. See Hamera v. Cty. of
Berks, 248 F. App’x 422, 424 (3d Cir. 2007) (explaining that the continuing violation theory
requires a plaintiff to “establish that the harassment is more than the occurrence of isolated
or sporadic acts of intentional discrimination”) (citation and internal quotation marks omitted);
see also Hyland v. Smyrna Sch. Dist., 608 F. App’x 79, 82 (3d Cir. 2015) (holding that
discrete acts of alleged discrimination could not be considered in evaluating the plaintiff’s
timely discrimination claims). The relevant distinction is between the occurrence of discrete,
isolated acts of discrimination and a persistent on-going pattern. West, 45 F.3d at 755.
Here, the incidents cited by Plaintiff that fall outside of the limitations period are not
“discrete” acts but rather, part of a persistent, on-going pattern of discrimination whereby Mr.
Roberts harasses other females in an abrasive, crude, derogatory, and inappropriate
16

fashion. For example, Plaintiff claims that Mr. Roberts has been the subject of numerous
complaints of inappropriate behavior by female employees while working at Sleepy’s:
1.

On July 15, 2008, Sonio (Niomy) Quiles complained of Roberts’
abrasive supervision and that she felt that he acted like this toward
other women as well, although she herself had not witnessed it. (Doc.
36-13, Roberts Ex. 2, at D02780 (emphasis added).)

2.

On November 8, 2008, he engaged in abrasive management.
Specifically, he yelled at [Plaintiff] and made her cry because she
was late to a sales meeting on November 8, 2008. (Doc. 36-13,
Roberts Ex. 4, at D02766; Doc. 36-13, Roberts Ex. 6, at D01929
(emphasis added).)

3.

Mr. Roberts was witnessed rubbing Jackie Brieling’s shoulders
once, which took place for no more than a minute. (Doc. 36-13,
Roberts Ex. 6, at D01929 (emphasis added).)

4.

He received or gave one or more back scratches or rubs to Plaintiff.
(Doc. 36-13, Roberts Ex. 6, at D01929 (emphasis added).)

These examples of harassment do not appear to represent isolated instances, but an overall
theme of Mr. Roberts’ harassing, derogatory, and inappropriate treatment of women at
Sleepy’s. The similar nature of these instances of harassment is highlighted by the fact that
when Plaintiff informed her DM that Mr. Roberts had propositioned her, his response was,
“Again he’s doing this?” (Doc. 36-6, Pl. Ex. 2, Mary Reid Dep. Tr., at 207:23-208:7.)
In arguing that the continuing violation theory does not apply, Defendant emphasizes
that there was at least a 10-month and 22-day gap between the Black Friday Incident and
the last prior act of alleged harassment, which occurred no later than December 31, 2011.
However, the Supreme Court has clarified that the amount of time between acts of
harassment is not critical in determining whether the continuing violation applies. Rather,
the dispositive issue is whether the acts of harassment are part of the same unlawful
employment practice:
It is precisely because the entire hostile work environment encompasses a
single unlawful employment practice that we do not hold, as have some of the
Circuits, that the plaintiff may not base a suit on individual acts that occurred
outside the statute of limitations unless it would have been unreasonable to
expect the plaintiff to sue before the statute ran on such conduct. . . .
The following scenarios illustrate our point: (1) Acts on days 1-400 create a
hostile work environment. The employee files the charge on day 401. Can the
employee recover for that part of the hostile work environment that occurred
17

in the first 100 days? (2) Acts contribute to a hostile environment on days
1-100 and on day 401, but there are no acts between days 101-400. Can
the act occurring on day 401 pull the other acts in for the purposes of
liability? In truth, all other things being equal, there is little difference between
the two scenarios as a hostile environment constitutes one “unlawful
employment practice” and it does not matter whether nothing occurred
within the intervening 301 days so long as each act is part of the whole.
Nor, if sufficient activity occurred by day 100 to make out a claim, does it
matter that the employee knows on that day that an actionable claim
happened; on day 401 all incidents are still part of the same claim.
Morgan, 536 U.S. at 117-18 (emphases added).
Defendant relies on my decision in Cortes v. R.I. Enterprises, Inc., 95 F. Supp. 2d 255
(M.D. Pa. 2000) to assert that because here, the “interim between alleged incidents . . . even
approaches one year, the element of frequency does not exist as a matter of law,” and
therefore the continuing violation theory cannot apply. (Doc. 42, at 4.) However, Defendant
misconstrues Cortes. In Cortes, my reasoning was based on the presence of a “discrete
event,” not on a specific amount of time. Id. at 263 (“I find that plaintiff has not alleged a
continuous violation because the earlier alleged violations did trigger a discrete
event–plaintiff’s leaving her job for a year due to sex discrimination”) (emphasis added).
Specifically, I found that there was not a continuous violation because the instance of
discrimination that occurred outside of the limitations period was a “discrete event,” namely,
the plaintiff left her job for a year due to sex discrimination. Id.; see also Morgan, 536 U.S.
at 110 (explaining that “discrete acts” are easy to identify as discriminatory, such as
termination, failure to promote, denial of transfer, or refusal to hire); Stough v. Conductive
Techs., Inc., 613 F. App’x 145, n.2 (3d Cir. May 19, 2015) (“demotion and failure to promote
are ‘discrete acts’ that ‘cannot be aggregated under a continuing violations theory’”).
In contrast to Cortes and Stough, where the continuing violation theory did not apply
due to a discrete event such as a resignation or termination, here, there is no similar
“discrete event.” Rather, Plaintiff alleges several similar incidents of harassment, such as
inappropriate sexual remarks and yelling by Mr. Roberts. As noted above, the Supreme
Court has explained that the passage of time between incidents is of little importance, so
long as the incidents are all similar in nature and part of the same unlawful employment
18

practice. Morgan, 536 U.S. at 117-18. Therefore, I find that the continuing violation applies.
3.

Harassment Involving Women Other Than Plaintiff

Defendant also argues that Plaintiff cannot rely on these instances of harassment by
Mr. Roberts involving other women to support her continuing violation theory unless they
(1) occurred in close temporal proximity to the harassment targeted at her and (2) were
similar in nature and kind to the harassment she experienced. Defendant adds that even
then, she must prove that she witnessed these acts of harassment.
Three (3) factors should be considered in analyzing whether evidence of harassment
of people other than the plaintiff may create an inference of discrimination: (1) whether the
harassment against others was committed by the same person who allegedly harassed the
plaintiff; (2) whether the harassment against others occurred in close temporal proximity to
the harassment targeted at the plaintiff; and (3) whether the harassment against others is
similar in nature and kind to that experienced by the plaintiff. Velez v. QVC, Inc., 227 F.
Supp. 2d 384, 413 (E.D. Pa. 2002). The key inquiry is whether a jury could conclude that
“the discrimination of which the plaintiff complains is sufficiently similar in time, nature, and
kind to that suffered by other employees.” Id.
The first of these factors weighs in favor of considering evidence of harassment
against other women because all of these other instances of harassment were committed
by the same person who harassed Plaintiff: Mr. Roberts. However, the second factor weighs
against considering evidence of other harassment, since there was a gap of approximately
eleven (11) months between the Black Friday Incident and the harassment against the other
women cited by Plaintiff. The third factor weighs in favor of considering this other evidence
because all instances of harassment are similar in nature and kind to the harassment
experienced by Plaintiff, namely, aggressive, derogatory comments as well as sexually
inappropriate remarks. There is also evidence that Plaintiff witnessed these instances of Mr.
Roberts harassing other women at the workplace. (See, e.g., Doc. 36-45, Pl. Ex. 27, at
EEOC0075 (noting that Plaintiff witnessed Mr. Roberts proposition Ms. Brieling and observed
him pull down the front of her shirt to look down her shirt and comment on the “nice view”).)
19

Accordingly, I find that the continuing violation theory applies to these otherwise time-barred
instances of harassment cited by Plaintiff and I will consider them in evaluating her hostile
environment claim.
4.

Severe or Pervasive

Defendant also argues that even accounting for these alleged incidents that occurred
outside of the limitations period, Plaintiff still cannot show that she experienced severe or
pervasive harassment. I agree. To satisfy the “severe or pervasive” element of a hostile
work environment claim, “the harassment must be so severe or pervasive that it alters the
conditions of the victim’s employment and creates an abusive environment.” Weston, 251
F.3d at 426 (citation omitted). A court should consider several factors in determining
whether an environment is hostile or abusive, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.
Id.(citation and internal quotation marks omitted). “[S]imple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (citations and internal quotation marks omitted).
Courts have found far more egregious behavior than that of Mr. Roberts to be
inactionable. For example, in Baskerville v. Culligan Int’l Co., 50 F.3d 428 (7th Cir. 1995),
the plaintiff, in support of her hostile work environment claim, adduced evidence that her
employer had over the course of seven (7) months called her a “pretty girl”; made grunting
noises as she left his office wearing a leather skirt; told her that his office did not get “hot”
until she stepped into it; joked that “all pretty girls [should] run around naked” in the office;
likened her to Anita Hill in acknowledging his tendency to share comments of a sexual nature
with her at the office; and made gestures suggesting masturbation while conversing. Id. at
430. Despite all this evidence of vulgar and coarse behavior, the Seventh Circuit overturned
a jury verdict in the plaintiff’s favor, noting that a “handful of comments spread over months
is unlikely to have so great an emotional impact as a concentrated or incessant barrage.”
20

Id. at 431; see also Bowman v. Shawnee State Univ., 220 F.3d 456, 463-65 (6th Cir. 2000)
(holding that the conduct in question was not sufficiently severe where female supervisor
rubbed an employee’s shoulders, grabbed the employee’s buttocks, and made other
unwelcome contact with the employee’s body); Carattini v. Woods Servs., Inc., No. 08-5201,
2010 WL 447453, at *1-*4 (E.D. Pa. Feb. 4, 2010) (finding that where the alleged harasser
“grabbed [the plaintiff’s] breasts and vagina while both were working in a laundry room,”
which caused her to scream and run away, “albeit totally inappropriate,” was not severe or
pervasive); Saidu-Kamara v. Parkway Corp., 155 F. Supp. 2d 436, 439-40 (E.D. Pa. 2001)
(granting summary judgment on hostile work environment claim where the plaintiff asserted
that her supervisor touched her breast and propositioned her to join him later that evening);
Grady v. Cracker Barrel Old Country Store, Inc., No. 4:cv-6-558, 2007 WL 1959298, at *7
(M.D. Pa. July 2, 2007) (granting summary judgment because repeated sexual overtures to
the plaintiff were insufficiently severe or pervasive to support hostile environment claim);
McGraw v. Wyeth-Ayerst Labs., Inc., No. Civ-96-5780, 1997 WL 799437, at *1, *6 (E.D. Pa.
Dec. 30, 1997) (holding that the conduct was not sufficiently severe where supervisor
repeatedly asked the plaintiff for a date, took disciplinary action against her when she
rebuffed his sexual advances, held her face in his hands on one occasion, and on another
forcibly kissed her without her consent).
Here, “[n]one of the acts individually even approach a ‘serious’ level of offensiveness,
and collectively they do not pain a picture of work environment permeated with disturbing
harassment.” Lulis v. Barnhart, 252 F. Supp. 2d 172, 176 (E.D. Pa. 2003) (finding that nine
incidents of harassment over a seventeen month period was insufficient to constitute a
hostile work environment). Accordingly, Plaintiff has failed to submit sufficient evidence for
a reasonable juror to find that the alleged harassment was severe or pervasive enough to
constitute a hostile work environment. Given that Plaintiff has failed to establish this element
of her claim, I need not engage in an analysis of the remaining elements. See, e.g.,
McGraw, 1997 WL 799437, at *6 (finding that it was unnecessary to reach the other
elements of the plaintiff’s hostile work environment claim because the severe or pervasive
21

element was not satisfied and granting summary judgment for the defendant). Defendant’s
motion for summary judgment on Plaintiff’s hostile environment claim will be granted.
D.

Disparate Treatment
Plaintiff also raises a disparate treatment claim, also known as a sex discrimination

claim, against Defendant. To state a prima facie case for sex discrimination, Plaintiff must
show that (1) she was a member of a protected class, (2) she was qualified for her position,
(3) she suffered an adverse employment action, and (4) that the action occurred under
conditions that give rise to an inference of intentional discrimination. Makky v. Chertoff, 541
F.3d 205, 214 (3d Cir. 2008). The determination of whether a prima facie case has been
made is a legal one for the court to decide. Pivirotto v. Innovative Sys., 191 F.3d 344, 347
n.1 (3d Cir. 1999).
Once the prima facie case is established, courts apply the McDonnellDouglas framework, where the burden shifts to the employer to “articulate some legitimate,
nondiscriminatory reason” for the employment action. Id. The defendant need not prove
that the tendered reason actually motivated his behavior, since throughout the burdenshifting framework, the ultimate burden of proving intentional discrimination always rests with
the plaintiff. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citation omitted); see also
Terrell v. City of Harrisburg P.D., 549 F. Supp. 2d 671, 681 (M.D. Pa. 2008) (“The defendant
is only required to prove that its actions could have been motivated by the proffered
legitimate, nondiscriminatory reason; proof of actual causation is not required.”) (emphasis
added) (citation omitted). This burden is “relatively light” and the employer need only
introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. Fuentes, 32 F.3d at 763.
Once a legitimate reason for the adverse employment action is established, the burden shifts
back to the plaintiff to show by a preponderance of the evidence that the employer’s
proffered reason was pretext. Makky, 541 F.3d at 214.
1.

Prima Facie Case

For purposes of summary judgment, Defendant concedes that Plaintiff can establish
22

the first three (3) elements of her discrimination claim: that she is a member of a protected
class, that she was qualified for her position, and that she suffered an adverse employment
action. However, Defendant disputes that she can satisfy the fourth element: an inference
of unlawful discrimination. Specifically, Defendant argues that there is no evidence of
intentional discrimination regarding the two (2) adverse decisions allegedly motivated by sex:
(1) the reduction in Plaintiff’s DZ shifts and (2) Plaintiff’s termination.
To demonstrate an inference of discrimination, plaintiffs typically attempt to adduce
evidence that the employer treated similarly situated employees from outside of the
protected group better. Smith v. ABF Freight Sys., Inc., No. 1:04-cv-2231, 2007 WL
3231969, at *8 (M.D. Pa. Oct. 29, 2007). Similarly situated employees are those who “have
dealt with the same supervisor, have been subject to the same standards and have engaged
in the same conduct without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them for it.” Id. (citations and internal
quotation marks omitted). Further, “all of the relevant aspects of employment need to be
nearly identical.” Id. (citation omitted).
Defendant argues that Plaintiff cannot point to any instance in which Mr. Jurlando
learned of a male employee who (1) got caught “bumping” tickets and then lied to cover his
tracks; (2) got caught hazing a new employee and smoking in front of the showroom; and
then (3) got caught smoking again in front of the showroom–all within the span of one (1)
month. That level of what Mr. Jurlando characterized as “gross insubordination” was unique
in the experience of Mr. Jurlando. Because Plaintiff cannot point to evidence of a male
employee who dealt with the same supervisor, was subject to the same standards, and
engaged in the same conduct without such differentiating or mitigating circumstances that
would distinguish his conduct or the employer’s treatment of him for it, Defendant argues that
Plaintiff’s disparate treatment claim must be dismissed as a matter of law.
a.

Plaintiff’s Reduction in DZ Shifts

First, Plaintiff argues that her shifts in the DZ location, which is “one of the most
lucrative showrooms” in Sleepy’s, were cut in half after she complained about Mr. Roberts.
23

Plaintiff claims that the record shows that she worked two (2) days in DZ before she
complained about Mr. Roberts and after she complained, she was reduced to one (1) day
per week in DZ. This alleged shift reduction is not a form of disparate treatment based on
sex, but retaliation for complaining about Mr. Roberts. More importantly, however, there is
no evidence that Plaintiff’s shifts at DZ were actually reduced, nonetheless because of her
sex, other than her own conclusory assertion in her brief. First, Plaintiff’s own testimony
shows that she believed that her hours in the DZ showroom increased during the limitations
period:
Q.
A.
Q.
A.
Q.
A.

Okay. Roughly what percentage of the time in 2013 did you work in the
Delta Zulu showroom?
I don’t know. I’m going to guess maybe 30 percent.
...
In 2012, roughly what percentage of the time did you work in the Delta
Zulu showroom?
A small portion.
Was it more than 10 percent?
I would say maybe 10 percent.

(Doc. 36-6, Pl. Ex. 2, Mary Reid Dep. Tr., at 44:22-45:13.) Further, Plaintiff testified that she
worked approximately two (2) days a week in the DZ showroom, both before and after she
complained about Mr. Roberts. (Id. at 197:15-198:10.)
Plaintiff points only to the showroom schedules to support her assertion that her DZ
showroom shifts were cut in half after she complained about Mr. Roberts in November 2012.
(Docs. 36-33 & 36-34.) However, the schedules submitted by Plaintiff are missing weeks 1417 of 2013. When the schedules are viewed in their entirety, they show that Ms. Ramos
scheduled Plaintiff to work at the DZ showroom more after she complained about Mr.
Roberts. (Doc. 42, Ex. A.) In the five (5) months following Plaintiff’s complaint about Mr.
Roberts, Plaintiff was scheduled in the DZ showroom twenty-five (25) times (between
December 2012 (week 49 of 2012) and April 2013 (week 17 of 2013)) in comparison to only
ten (10) times in the five (5) months before she complained about Mr. Roberts (between July
2012 (week 27 of 2012) and November 2012 (week 48 of 2012)). (D.E. 36-33 & 36-34; Ex.
A.)

Both Plaintiff’s own testimony and the actual work schedules establish that her

24

assignments to the DZ showroom were not reduced and in fact, actually were increased.
There is no evidence to dispute this fact.
Because there is no evidence that Plaintiff’s DZ shifts were reduced, there is no
evidence that the decision was motivated by her sex. Accordingly, no reasonable juror could
conclude that Defendant discriminated against Plaintiff because of her sex on this basis.
b.

Plaintiff’s Warnings and Termination

Plaintiff also claims that she was issued several warnings, which ultimately resulted
in her termination, on the basis of her sex.

She claims that an inference of sex

discrimination can be drawn because other similarly situated males were treated more
favorably. However, there is no evidence in the record to suggest that this was the case.
First, Plaintiff argues that on March 30, 2013, she was issued a written warning by Mr.
Jurlando for failing to finalize tickets. Plaintiff argues that the evidence shows that this
decision was motivated by her sex. Specifically, Plaintiff points to the fact Mr. Jurlando
admitted that he had only disciplined one other employee for failing to finalize a ticket during
his eleven-year employment with Sleepy’s, and that she was therefore being singled out.
However, it is undisputed that this other employee was a male, and instead of issuing him
a warning like he did with Plaintiff, Mr. Jurlando fired him. (Doc. 36-18, Pl. Ex. 10, Thomas
Jurlando Dep. Tr., at 112:23-113:4.) If anything, the evidence shows that Plaintiff was
treated more favorably than similarly situated male employees.
Second, Plaintiff points to the final written warning that she was issued on April 18,
2013, for the complaint filed by Mr. Cerullo regarding the photograph she took of him as well
as her smoking in front of a showroom and her use of profanity. A few weeks later, Mr.
Jurlando caught Plaintiff smoking again in front of a showroom, which triggered his decision
to fire her. Plaintiff argues that a reasonable juror could conclude that these decisions were
motivated by discriminatory animus because other similarly situated male employees were
not disciplined in a similar fashion for smoking or using profanity.
First, Plaintiff cannot cite to any similarly situated male who engaged in conduct

25

similar to hers in taking Mr. Cerullo’s photograph and distributing it to all other sales
employees in the region. With regard to smoking, Plaintiff concedes that employees are
prohibited from smoking in showrooms and in the entrances and exits. (Doc. 35, Pl. Opp.,
at 11.) Plaintiff only cites to Brian Mucci, who admitted that he “spoke” to another male
employee, Steven Groner, about smoking, but he did not discipline him or terminate him.
However, Plaintiff fails to show how Mr. Groner (1) “dealt with the same supervisor” as her
or (2) “engaged in the same conduct” as her. Smith v. ABF Freight Sys., Inc., No. 1:04-cv2231, 2007 WL 3231969, at *8 (M.D. Pa. Oct. 29, 2007). For example, Mr. Mucci’s
treatment of a male employee with regard to smoking does not speak to whether Mr.
Jurlando’s treatment of Plaintiff with regard to smoking was motivated by a discriminatory
animus. Additionally, Plaintiff does not attempt to explain how Mr. Groner was similarly
situated to her. She does not assert whether he was caught smoking outside of a showroom
in violation of policy, like she was. She only asserts that he had a conversation about
smoking, without any additional detail. For example, she does not claim (or submit any
evidence demonstrating) that he was actually caught smoking. Accordingly, there is no other
evidence to show that Mr. Groner or any other similarly situated males were treated more
favorably than Plaintiff.
Plaintiff also cites to Mr. Roberts, asserting that he was subject to numerous
complaints but not disciplined for his participation in the same conversation that precipitated
Plaintiff’s verbal warning. However, Plaintiff cannot simply point to another male employee
who received complaints and compare that to her situation, without further identifying how
else they were similarly situated, such as who the decision-maker was, what the complaint
was for, when the incident occurred, or any defenses Mr. Roberts may have had to the
complaint. As for Plaintiff’s assertion that Mr. Roberts was not disciplined for his participation
in the same conversation that she was disciplined for, Plaintiff does not reference which
conversation she is referring to or what was said. Presumably, she is referring to the Black
Friday Incident, wherein one of Plaintiff’s friends asked Mr. Roberts about dildos in Plaintiff’s
presence. However, the undisputed fact is that neither Plaintiff nor Mr. Roberts was
26

disciplined for this conversation.
With regard to profanity, Plaintiff also fails to cite to similarly situated male employees
who were treated more favorably than she was. She vaguely refers to a male employee,
Aaron King, and states, without support to any record evidence, that he “was not disciplined
for his suggestive remark.” However, Plaintiff does not explain any details surrounding this
“suggestive remark,” such as what the remark was, when it was made, who was witness to
the remark, or if anyone complained about the remark. Therefore, there is no evidence to
suggest that similarly situated male employees were treated more favorably than Plaintiff.
Plaintiff also cites to Eric Stevens, a male salesperson, who admitted to calling himself
“f*ing amazing” in an e-mail to Ms. Reid dated March 18, 2013, but acknowledged that he
was not disciplined for it. However, the undisputed evidence shows that this conduct was
distinct from Plaintiff’s use of profanity in front of Mr. Cerullo. Mr. Stevens testified that
based on the conversations he has had with Plaintiff and their familiarity with each other, he
knew she would not be offended by his e-mail. (Doc. 36-31, Pl. Ex. 16, Eric Stevens Dep.
Tr., at 39-41.) Plaintiff does not dispute this. This is a critical distinction from Plaintiff’s use
of profanity in front of Mr. Cerullo, a new trainee with whom Plaintiff was not familiar with.
In discussing Sleepy’s policy regarding profanity, Mr. Jurlando explained the use of profanity
in the workplace was not per se unprofessional, and that one had to consider the setting.
(Doc. 36-18, Pl. Ex. 10, Thomas Jurlando Dep. Tr., at 83:9-84:13.) If two (2) co-workers, like
Mr. Stevens and Ms. Reid, on occasion used a profanity and were friendly with each other
and knew that the other would not be offended, that would not be as serious of a problem
as the case with Ms. Reid, where she used profanity “in front of a trainee, which is a person
that we just interviewed and hired and brought to the company and have great expectations
for.” (Id. at 84:1-85:4.) The use of profanity in front of Mr. Cerullo, a trainee, was particularly
unprofessional and problematic for Sleepy’s because they were “trying to put their best foot
forward, trying to influence them to do the right thing, to follow the procedures and policies
and to be professional.” (Id.) This was a quite distinct situation from Mr. Stevens’ e-mail to
Ms. Reid, a co-worker who had been with the company for years and with whom he was
27

comfortable and friendly with. Therefore, Plaintiff has failed to submit any evidence to
suggest an inference that she was discriminated based on her sex or that similarly situated
males were treated more favorably than she was.
Additionally, and perhaps most critically, Plaintiff herself admitted that she has no
reason to believe that Mr. Jurlando ever acted because of an anti-female bias. (Doc. 36-6,
Pl. Ex. 2, Mary Reid Dep. Tr., at 268:1-5.) See also McGovern v. Supermarkets Gen. Corp.,
No. 95-7001, 1996 WL 628586, at *4 (E.D. Pa. Oct. 25, 1996) (granting summary judgment
for the defendant because the plaintiff admitted that he had “no reason to believe” that the
decisionmaker acted due to unlawful motive). Accordingly, Defendant’s Motion for Summary
Judgment on Plaintiff’s sex discrimination claim will be granted.
c.

Harassment Following Plaintiff’s Complaint

Finally, Plaintiff argues that “when a woman who complains about sexual harassment
is thereafter subjected to harassment based on that complaint, a claim that the harassment
constituted sex discrimination will almost always present a question that must be presented
to the trier of fact.” (Doc. 35, at 28 (citing Jensen v. Potter, 435 F.3d 444, 454 (3d Cir. 2006),
overruled on other grounds).). Beyond quoting this passage from Jensen, Plaintiff does not
expound on this argument. Regardless, Jensen is readily distinguishable from Plaintiff’s
case. In Jensen, the Third Circuit emphasized a change in behavior toward Plaintiff before
and after her complaint of harassment. Specifically, Plaintiff got along well with her coworkers prior to complaining of harassment from a supervisor, and then after making her
complaint, those same co-workers she was previously friendly with then immediately began
harassing her. Under these circumstances, the Third Circuit found that this change in
behavior presented an issue of fact for the jury as to whether the harassment following her
complaint was motivated by her sex.
However, here, the circumstances are quite different. Plaintiff does not claim that any
co-workers she was previously friendly with then began harassing her after she complained
about Mr. Roberts. The harassment that she experienced from Mr. Roberts occurred both

28

before and after the filing of her complaint. She also does not claim that there was a change
in behavior from any of the supervisors that “disciplined” her after the filing of her complaint.
Therefore, because Plaintiff has failed to submit any evidence from which a
reasonable juror could infer that she was unlawfully discriminated based on her sex,
summary judgment will be granted in favor of Defendant on this claim.
2.

Pretext

Even assuming Plaintiff adduced sufficient evidence to establish a prima facie case
of sex discrimination, Plaintiff has failed to show that the proffered legitimate, nondiscriminatory reasons for demoting her “w[ere] merely a pretext for unlawful discrimination.”
Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 319 (3d Cir. 2000). A plaintiff
carries a “difficult burden” in demonstrating pretext. Fuentes, 32 F.3d at 765. To establish
pretext, a plaintiff must “point to some evidence, direct or circumstantial, from which a
factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer’s action.” Id. at 764. The plaintiff must
show “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them unworthy of credence, and hence infer that the employer did not act for
the asserted non-discriminatory reasons.” Id. at 765 (citation and internal quotation marks
omitted). The plaintiff cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer was wise, shrewd, prudent, or competent. Id.
Here, Plaintiff has failed to demonstrate that Defendant’s proffered, legitimate reasons
for the adverse employment actions were pretextual. First, Plaintiff asserts that Defendant
has not set forth a legitimate non-discriminatory reason for the reduction in her DZ showroom
shifts. However, as explained above, Plaintiff has failed to submit evidence from which a
reasonable juror could conclude that there was any reduction in her DZ showroom shifts.
Because there is no evidence that this adverse action happened, there is no need for
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Defendant to provide any legitimate, non-discriminatory reasons for it.
With regard to Plaintiff’s warnings and termination, Defendant has asserted that she
was terminated by Mr. Jurlando because of her “gross insubordination,” having deliberately
and repeatedly ignored the policies he sought to enforce and having ignored the written
warning and final written warning she had been issued within the preceding month. When
Mr. Jurlando encountered Plaintiff smoking in front of the DC showroom on April 27, 2013,
he did not merely regard her as an employee in violation of the smoking policy, but regarded
her decision to smoke in precisely the same place he had told her not to smoke, nine (9)
days earlier and via the final written warning, as a slap in the face, evincing utter disregard
for the repeated second chances he had given her. Therefore, the burden shifts to Plaintiff
“to prove by a preponderance of the evidence that the legitimate reasons offered by
[Sleepy’s] are merely a pretext for discrimination.” Terrell v. City of Harrisburg Police Dep’t,
549 F. Supp. 2d 671, 681 (M.D. Pa. 2008). She must point to evidence that would allow a
reasonable jury to conclude “not merely that the employer’s proffered reason was wrong, but
that it was so plainly wrong that it cannot have been the employer’s real reason.”
Jakimowicz v. City of Phila., No. 07-3327, 2010 WL 2649890, at *5 (E.D. Pa. June 30, 2010).
Plaintiff failed to do this. Rather, Plaintiff simply claims that she is the only person that Mr.
Jurlando ever disciplined for smoking. First, even assuming this is true, that does not
support the conclusion that Mr. Jurlando used the smoking policy as pretext to discriminate
against women because there is no evidence of similarly situated men caught for the same
conduct that were treated more favorably. Second, Mr. Jurlando testified that the reason for
his decision was not that she was smoking, but the pattern of “gross insubordination,” of
which Plaintiff’s violation of the smoking policy was only one component.
Plaintiff also points to Brian Mucci, who admitted that he “spoke” to a male employee
about smoking, but formal discipline was not used. As explained above, however, absent
any evidence of how this male employee was similarly situated to Plaintiff fails to suggest
that Mr. Jurlando’s decision to discipline Plaintiff for smoking. Not only does Plaintiff’s
situation involve a different decision-maker, there are no details regarding the circumstances
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of this other male employee, such as was he actually caught smoking or was he just “talked”
to about it, where he was caught smoking, when he was caught smoking, and whether he
had received a prior warning about not smoking.
Next, Plaintiff asserts that Defendant’s argument that she was smoking in “precisely
the same place [Mr. Jurlando] had told her not to smoke” is false, and this false
representation “clearly demonstrates the pretext that Defendant argues is lacking.” (Doc.
35, at 30.) However, this “criticism[] amount[s] to little more than the schoolground retort,
‘Not so,’ an approach which,” as explained by the Third Circuit, “does not create a material
issue of fact.” Fuentes, 32 F.3d at 766. Further, even assuming it is true that Mr. Jurlando
was mistaken about the locations where Plaintiff was caught smoking, it is not sufficient to
show that his proffered reason for her termination was merely wrong, “but that it was so
plainly wrong that it cannot have been the employer’s real reason.” Jakimowicz, 2010 WL
2649890, at *5. “To discredit the employer’s proffered reason . . . the plaintiff cannot simply
show that the employer’s decision was wrong or mistaken, since the factual dispute at
issue is whether discriminatory animus motivated the employer, not whether the employer
is wise, shrewd, prudent, or competent.” Fuentes, 32 F.3d at 765. The critical issue is not
whether Mr. Jurlando interprets the smoking policy correctly or whether, when he caught
Plaintiff smoking the second time, he mistakenly thought it was the same location he initially
caught her smoking in. Rather, the issue is whether Mr. Jurlando used the smoking policy
as an excuse to discriminate against Plaintiff because of her sex. Plaintiff has submitted no
evidence to suggest that this was the case.
Second, Plaintiff asserts, without citation, that Mr. Jurlando and two (2) other
managers “discussed promoting [Mr.] Roberts while the investigation of Ms. Reid’s
complaint was pending.” (Doc. 35, Pl. Opp., at 31.) Plaintiff does not provide any authority
to show that this consideration would allow a jury to find that Mr. Jurlando’s proffered reason
for her termination was a pretext for anti-female animus. Additionally, the undisputed
evidence shows that although Mr. Roberts raised his desire of being promoted to Mr.
Jurlando numerous times, Mr. Jurlando was against the idea and would not support Mr.
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Roberts to be a district manager. (Doc. 36-18, Pl. Ex. 10, Thomas Jurlando Dep. Tr., at
65:15-67:22.) A reasonable juror could not infer an anti-female animus from this, particularly
given Plaintiff’s own admission that she had no reason to believe that Mr. Jurlando ever
acted because of an anti-female bias. (Doc. 36-6, Pl. Ex. 2, Mary Reid Dep. Tr., at 268:1-5.)
Given the lack of evidence to suggest that Defendant’s proffered reasons for
Plaintiff’s termination were pretextual, Plaintiff has failed to satisfy her “difficult burden” of
demonstrating pretext. Fuentes, 32 F.3d at 765; see also Cridland v. Kmart Corp., 929 F.
Supp. 2d 377, 390 (E.D. Pa. 2013) (granting summary judgment because Plaintiff “failed
to present sufficient evidence from which a reasonable factfinder could find pretext–he
neither established a legitimate basis for disbelieving the Kmart’s nondiscriminatory
explanation for its action, nor presented sufficient evidence to support a finding that
individuals at Kmart were driven by invidious intent.”). Accordingly, summary judgment
will be entered in favor of Defendant on Plaintiff’s disparate treatment claim.
E.

Retaliation
Finally, Plaintiff raises a retaliation claim against Defendant pursuant to Title VII

and the PHRA. To establish a prima facie case of retaliation, Plaintiff must show that (1)
she engaged in protected activity, (2) Defendant took an adverse action against her, and
(3) there was a causal connection between her participation in the protected activity and
the adverse employment action. Motto v. Wal-Mart Stores East, LP, 563 F. App’x 160,
163 (3d Cir. 2014). The Supreme Court has recently clarified that, as to the third prong, a
plaintiff making a claim of retaliation under Title VII “must establish that his or her
protected activity was a but-for cause of the alleged adverse action by the employer.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013). Once Defendant
articulates a non-retaliatory reason for the contested decision(s), Plaintiff must then
present evidence that this reason is a pretext for retaliation. Id.
Here, Plaintiff engaged in three (3) forms of protected activity: (1) her complaints
about Mr. Roberts in November 2012, (2) the EEOC Charge of Discrimination she filed
on February 4, 2013, and (3) her testimony in another harassment case against
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Defendant on March 21, 2013. See Motto, 563 F. App’x at 163 (“It is well-established
that activity short of a formal letter of complaint to the EEOC, such as making complaints
to management,’ can constitute protected conduct.”) (citation and internal quotation
marks omitted). Plaintiff asserts that three (3) discrete adverse actions stemmed from
these protected activities: (1) a reduction of her shifts in the DZ showroom, (2) her final
written warning, and (3) her subsequent termination. Defendant argues that her
retaliation claim fails as a matter of law because there (1) is no causal link between any
of the alleged adverse actions and the alleged protected activity and (2) there is no
evidence of pretext. I agree with Defendant.
1.

No Causal Link

First, Plaintiff’s retaliation claim fails at the “causation” element of her prima facie
case. Plaintiff has presented no evidence of a causal link between her protected activity
and the purported adverse actions taken against her. In analyzing causation, the Third
Circuit has focused on two (2) factors: (1) the temporal proximity between the protected
activity and the alleged discrimination and (2) the existence of a pattern of antagonism in
the intervening period. Hussein v. UPMC Mercy Hosp., 466 F. App’x 108, 112 (3d Cir.
2012). Timing alone will not support a finding of causation unless it is “unusually
suggestive.” Morrissey v. Luzerne Cty. Cmty. Coll., 117 F. App’x 809, 816 (3d Cir. 2004);
see also Merrigan v. Aramark Servs., Inc., No. 06-5289, 2009 WL 2998362, at *11 (E.D.
Pa. Sept. 18, 2009) (“[T]iming alone very rarely suffices to support causation.”).
First, as explained above, Plaintiff has failed to submit any evidence to suggest
that there was any reduction in her DZ showroom shifts. Rather, the evidence shows that
her DZ shifts actually increased after she complained about Mr. Roberts. Because there
is no evidence that this adverse action actually occurred, it cannot serve as a basis for
Plaintiff’s retaliation claim.
As for the remaining adverse employment actions–her final written warning and
her termination–Plaintiff relies largely on temporal proximity to establish causation.
Specifically, Plaintiff argues that she received her final written warning on April 18, 2013,
33

which was two (2) months after she filed her EEOC charge and two (2) weeks after she
was deposed in the Chiarelli Litigation. However, taken in its full context, this timing is
not unusually suggestive, particularly since her written warning was issued in the
aftermath of complaints that Defendant received about her. In Motto v. Wal-Mart Stores
East, LP, the Third Circuit held that a period of eleven (11) days between the plaintiff’s
sexual harassment complaint and his discharge failed to establish causation because the
discharge occurred in the aftermath of an incident whereby the plaintiff was accused of
having made statements that constituted threats of physical harm, even though this fact
was vigorously disputed. 563 F. App’x at 161-63 (“The crux of Motto’s causation
argument on this appeal is that the short time between his complaint about sexual
harassment and his discharge, eleven days, is sufficient by itself to show a causal link.
We do not agree.”). The Third Circuit explained that “[t]he timing was dictated by how
long it took [management] to properly investigate the situation and reach a decision.” Id.
at 163. Thus, the Third Circuit agreed with the district court that the eleven-day period
was not unusually suggestive of retaliation and affirmed dismissal of the plaintiff’s
retaliation claim. Id. at 163-64.
Similarly, here, the two-month period between the filing of Plaintiff’s EEOC charge
and her final written warning and the two-week period between her final written warning
and her Chiarelli deposition are not unusually suggestive when taken in their full context
because the final written warning was issued in the aftermath of a complaint Defendant
received about Plaintiff. Specifically, the final written warning was issued on April 18,
2013, in the aftermath of Mr. Cerullo’s complaint against Plaintiff, which required
Defendant to engage in an investigation before taking any disciplinary action. The
complaint was filed with regard to an incident that had occurred only a week earlier, on
April 11, 2013, when Mr. Cerullo was working as a new trainee in the DZ showroom with
Plaintiff. Given the time that Defendant needed to investigate this complaint before
disciplining Plaintiff and, given that, as noted above, the undisputed evidence shows that
Defendant was unable to speak with Mr. Cerullo until April 17, 2013, the day before
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Plaintiff’s final written warning was issued, this timing is not unusually suggestive.
Ms. Reid also notes that on March 30, 2013, she was issued a written warning for
an incident that occurred on March 9, 2013, which was approximately a week after her
Chiarelli deposition on March 21, 2013. However, again, this timing is not unusually
suggestive because the written warning was issued in the aftermath of Plaintiff failing to
finalize two (2) tickets before leaving her shift for the night. An accusation of an
employee failing to finalize or “bumping” tickets is a serious one, so serious that the only
other person who Mr. Jurlando ever caught “bumping” tickets in his eleven (11) year
employment was not simply issued a warning, but fired. (Doc. 36-18, Pl. Ex. 10, Thomas
Jurlando Dep. Tr., at 112:23-113:4.) This is undisputed. Although Plaintiff’s incident
occurred on March 9, 2013, it required an investigation by Defendant into whether Ms.
Reid’s account of what happened could be corroborated. For example, Ms. Reid claimed
that her failure to finalize her tickets was due to a computer problem and that she called
IT for help. After Mr. Mucci reported this issue to Mr. Jurlando, Mr. Jurlando had to
investigate her defense. Mr. Jurlando contacted the help desk to try and confirm
Plaintiff’s account that she had called them. However, he was unable to produce any
record of a call. Therefore, like in Motto, when viewed in its full context, the timing of
Plaintiff’s written warnings and termination are not unusually suggestive. Because the
timing of her written warnings and her termination are not unusually suggestive of
retaliation, Plaintiff cannot rely on this timing alone to survive summary judgment.
Morrissey, 117 F. App’x at 816; Merrigan, 2009 WL 2998362, at *11 (holding that the
plaintiff’s retaliation claim failed as a matter of law because the timing of the termination
was not suggestive of retaliation).
When the timing is not unusually suggestive of retaliatory motive, courts may look
to the intervening period for other evidence of retaliatory animus, such as a pattern of
antagonism. Krouse, 126 F.3d at 504. Here, Plaintiff submits that she was a victim of a
pattern of antagonism based on two (2) e-mails, neither of which were directed to or sent
to her. (Doc. 36, Counterstatement, ¶ 85.) First, she points to a December 5, 2012 e35

mail from Showroom Manager Valerie McAvoy to Thomas Jurlando. In this e-mail, which
Plaintiff is not copied on, Ms. McAvoy defends Mr. Roberts, stating that she, along with
many others, are upset about what has happened to him and Mr. Passion. (Doc. 36-35,
Pl. Ex. 19, Dec. 6, 2012 McAvoy E-mail, at EEOC0232.) Ms. McAvoy states that Mr.
Roberts was always a professional employee and that as far as Ms. Reid goes, “she did
not like him, why, I do not know. I know she was upset that he did not choose her as his
2nd in DZ, he requested Eric instead. But [she] has stated to more than one person she
hates him. . . . It is a witch hunt, my opinion only.” (Id.) Plaintiff points to no evidence
showing that this e-mail was sent to her or even brought to her attention, even if only
indirectly. No reasonable juror could conclude that Plaintiff was subjected to a pattern of
antagonism based on this e-mail.
The only other evidence Plaintiff points to in support of a pattern of antagonism is
a similar e-mail from Aaron King to Mr. Jurlando dated December 4, 2012, offering his
opinion on the situation with Mr. Roberts and Ms. Reid. (Doc. 36-46, Pl. Ex. 28, Dec. 4,
2012 King E-mail, at EEOC0230.) The entirety of this e-mail, which Plaintiff again is not
copied on, reads as follows:
At this point I know a little bit of what has happen [sic] to Harry and Ron. I
am not sure what the entire story is but I can say that Mary Reid has
stressed to me numerous times over my 2 years here at sleepys [sic] that
she never liked Ron for what ever reasons [sic]. She litterly [sic] used to
say she just flat out hated him. I worked with her in DC for about 6 or 7
months and heard all kinds of things come from her mouth. I am not
looking to throw anyone under a bus but I dont [sic] like to see someone fry
for nothing. I want you to know that if I can help these guys in any way
about the things Mary Reid has even said to me I would gladly speak up.
Aaron King AK4722
Mattress Professional
(Doc. 36-46, Pl. Ex. 28, Dec. 4, 2012 King E-mail, at EEOC0230.) These two (2) emails
do not suggest a pattern of antagonism. Rather, they simply represent the opinions of
other employees who privately offered their opinions and further help with the
investigation into the conflict between Mr. Roberts and Ms. Reid. Neither of these emails antagonize Ms. Reid in any way. Plaintiff points to no other evidence to suggest a
36

pattern of antagonism or retaliatory animus. Accordingly, Plaintiff has failed to adduce
sufficient evidence on the causation element to survive summary judgment.
2.

Pretext

Even assuming Plaintiff were able to adduce sufficient evidence to establish
causation, Plaintiff has failed to adduce sufficient evidence to establish pretext, for many
of the same reasons outlined above in the analysis of her disparate treatment claim.
Plaintiff argues that the timing of her termination combined with the pretextual
explanation for the discipline for smoking is sufficient to establish a prima facie case of
retaliation. Plaintiff relies on Kellerman v. UPMC St. Margaret, 317 F. App’x 290 (3d Cir.
2009), to assert that “[i]t is not for a court to decide the significance, if any, of the timing
of [the plaintiff’s] termination . . . Such disputes must be resolved by a factfinder, and the
district court therefore erred in granting summary judgment on the retaliation claim.” Id.
at 293; see also Romdhani v. Exxon Mobil Corp., No. 07-715, 2011 WL 722849, at *16
(D. Del. Feb. 23, 2011) (given the timing of the plaintiff’s complaints and her termination,
sufficient evidence exists that could lead a reasonable jury to conclude that the reasons
are pretext). However, in Kellerman, the Third Circuit’s decision that the plaintiff’s
retaliation claim could survive summary judgment was not based on timing, but additional
evidence of pretext:
Whether or not timing alone would be sufficient, Kellerman has
produced additional evidence of pretext. At the deposition, he testified that
he told SMH of his prior employment history at Divine Providence when he
first interviewed for the job in March, 2002, but that his failure to include that
prior employment on his job application did not become an issue until after
he filed his EEOC complaint. We agree that the timing of his termination
combined with evidence of a pretextual explanation for his termination
is sufficient to establish a prima facie case of retaliatory dismissal.
317 F. App’x at 293 (emphases added). In contrast, here, Plaintiff relies on timing alone.
Unlike the plaintiff in Kellerman, Plaintiff here does not point to any evidence of a
pretextual explanation for the warning she was issued for Mr. Cerullo’s complaint of her
taking his photograph and distributing it to the entire region, smoking, and use of
profanity, nor does she point to any evidence of a pretextual explanation for her
37

termination. Kellerman was unique in the sense that the reason offered for the plaintiff’s
termination was something that the defendant was aware of long before any disciplinary
action was taken, approximately an entire year earlier, yet the plaintiff was fired for it only
weeks after his complaint of sexual harassment. Id. at 293. Therefore, under those
circumstances, the Third Circuit explained that it was for a fact-finder to decide the
significance of this timing and when the defendant learned of the plaintiff’s prior
employment, which was the subject of his termination. Id. However, here, there is no
question of when Defendant learned of Plaintiff’s failure to finalize tickets on March 9,
2013, or of Mr. Cerullo’s complaint against Plaintiff regarding her taking his photograph,
smoking, and use of profanity. Therefore, Kellerman is inapposite.
Plaintiff’s reliance on Romdhani is similarly misguided. In Romdhani, the plaintiffs
submitted evidence that they were treated differently by their supervisors before and after
filing their discrimination complaints. Romdhani v. Exxon Mobil Corp., No. 07-715, 2011
WL 722849, at *15-*16 (D. Del. Feb. 23, 2011). They also submitted evidence of “an
escalating campaign” and threats that “unspecified employment action” would be taken
against one of the plaintiffs, who was “told that her complaints would only make it
harder for her in the workplace.” Id. at *15 (emphasis added). One of the plaintiffs
was terminated from her employment “within hours of reporting complaints of sexual
harassment to her supervisors.” Id. This incredibly suggestive timing of only a few hours,
when viewed in the context of the other evidence of threats and antagonism, raised
genuine issues of material fact that made summary judgment on the retaliation claim
inappropriate. Id. However, unlike in Romdhani, the timing here is not unusually
suggestive and Plaintiff points to no evidence of similar threats and antagonism that
would suggest the proffered reasons for her warnings and termination were pretextual.
Therefore, Romdhani is similarly inapposite.
Regarding Plaintiff’s final written warning, Mr. Jurlando testified that he issued a
final written warning to Plaintiff because of her poor judgment and lack of professionalism
in using profanity in front of a trainee, someone that the company was trying to make a
38

good impression on. (Doc. 36-18, Pl. Ex. 10, Thomas Jurlando Dep. Tr., at 84:1-85:4.)
Plaintiff cannot point to any record evidence suggesting that this reason proffered by Mr.
Jurlando was a lie, much less “so plainly wrong that it cannot have been [his] real
reason.” Jakimowicz, 2010 WL 2649890, at *5; see also Merrigan, 2009 WL 2998362, at
*11 (“Plaintiff’s disagreement with her supervisors’ decisions do not demonstrate
discriminatory animus.”). Plaintiff similarly cannot point to any evidence to suggest that
Mr. Jurlando’s proffered reason for her termination–her gross pattern of
insubordination–was pretextual. Accordingly, summary judgment will be entered in favor
of Defendant on these claims.
III. Conclusion
For the above stated reasons, Defendant’s Motion for Summary Judgment will be
granted and Defendant’s Motion to Strike will be denied.
An appropriate order follows.

June 16, 2016
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

39