CUPPETT v. RITE AID CORPORATION

Filing 43

MEMORANDUM OPINION AND ORDER granting 30 Motion for Summary Judgment. Plaintiff's Complaint is dismissed with prejudice, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 10/21/2019. (dlg)

IN THE UNITED STATES DISTRICT COUR'If
FOR THE WESTERN DISTRICT OF PENNSYLV1NIA
!

CARY J. CUPPETT,

)

Case No. 3:18-cv-14

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)

v.

)
)

RITE AID OF PENNSYLVANIA, INC.,

)
)

Defendant.

)
MEMORANDUM OPINION

I.

Introduction

This case arises from Defendant Rite Aid of Pennsylvania, Inc.'s ("Rite Aid") alleged
discrimination against Plaintiff in violation of both Title VII of the Civil Rights Act of 1964 ("Title
VII") and Age Discrimination in Employment Act (" ADEA'') while working as a pharmacist for
Defendant. Pending before the Court is Defendant's Motion for Summary Judgment. (ECF No.
30.) The Motion is fully briefed (ECF Nos. 31, 35, 41) and ripe for disposition. For the reasons
that follow, the Court GRANTS Defendant's Motion.
II.

Jurisdiction and Venue

This Court has subject-matter jurisdiction because Plaintiff's claims arise under federal
law. 28 U.S.C. § 1331. Venue is proper because a substantial part of the events giving rise to
Plaintiff's claims occurred in the Western District of Pennsylvania. 28 U.S.C. § 1391(b)(2).

III.

Factual Background
The following facts are undisputed unless otherwise noted. 1
A. Plaintiff's History as a Pharmacist for Defendant
In 1997, Plaintiff-who was born in 1949-worked part-time at an independent pharmacy

that Defendant acquired. (ECF No. 32 <JrlI 14, 18.) Approximately a year after the acquisition,
Plaintiff resigned from Rite Aid. (Id.

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22.) In October 2000, Plaintiff reached out to his former

supervisor at Rite Aid, Frank Aceto, to see if Rite Aid had any jobs available. (Id.

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23.) Mr. Aceto

informed Plaintiff that Rite Aid had a pharmacist position available splitting time between Rite
Aid's Huntingdon and Mount Union locations. (Id.

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24.) Plaintiff applied for and received this

position, but subsequently resigned from Rite Aid because he did not want to travel to the two
locations. (Id.

<_![<_![

25, 31.)

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The Court derives these facts from solely Defendant's Concise Statement of Material Facts in Support of
its Motion for Summary Judgment (ECF No. 32). The Court notes that Plaintiff has failed to comply with
the Federal Rules of Civil Procedure, the Local Rules of Court of the United States District Court for the
Western District of Pennsylvania, and the Practices and Procedures of this Challl\bers. Federal Rule 56(c)(l),
Local Rule 56(C)(l), and this Chamber's Practice and Procedures unequivocally require a responsive
concise statement of material facts to contain references to materials in the tecord. See Fed. R. Civ. P.
56( c)(l ); LCvR 56(C)(l ), https://www.pawd.uscourts.gov/sites/pawd/files/lrma.,-iual20181101.pdf; Practices
and Procedures of Judge Kim R. Gibson at 28, https://www.pawd.uscouirts.gov/sites/pawd/files/JGPractices-Procedures.pdf. Here, in Plaintiff's Response to Defendant's ConciseiStatement of Material Facts
in Support of its Motion for Summary Judgment (ECF No. 36), Plaintiff's denials state only "DeniedUnknown" or "Denied-Not Material" and do not contain any references to materials in the record.
Similarly, Plaintiff's Concise Statement of Undisputed Material Facts (ECF No. 37), does not contain a single
citation to materials in the record. These rules do not exist only as mere formalities; they serve an important
purpose for the Court. Concise statements of material fact isolate the disputed facts and assure that the
parties have produced materials in the record to support their underlying claip:1s. A party cannot oppose
a motion for summary judgment on mere denials of material facts. Fed. R. Civ 1P. 56(c). Failure to comply
with these rules has consequences, as "[a]lleged material facts set forth in e moving party's Concise
Statement of Material Facts ... will for the purpose of deciding the motion for summary judgment be
deemed admitted unless specifically denied or otherwise controverted by a s parate concise statement of
the opposing party." LCvR 56(E); see also Practices and Procedures of Judge Ki R. Gibson at 28-29 (same).
Accordingly, the Court deems all of the facts in Defendant's Concise Statement 1of Material Facts in Support
of its Motion for Summary Judgment (ECF No. 32) to be admitted by Plaintiff.I
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In July 2002, Pharmacy District Manager Sherry McQuiston reacted out to Plaintiff to see
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if he would be interested in a pharmacist position at a store in Wind,er. (Id. <J[ 32.) Plaintiff
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accepted Ms. McQuiston's offer and returned to employment with Rite! Aid. (Id. <J[ 33.) In May
2003, Plaintiff took over the Pharmacy Manager position at a store in Cresson and, after about a
year, Plaintiff was moved to a floating pharmacist position. (Id. <J[<J[ 34-35.) Over the next several
years, Plaintiff shifted between positions at different stores and Defendant ultimately transferred
him back to the store in Windber in July 2013, as the store's staff pharmacist. (Id. <J[<J[ 36-40.)
In August 2014, Ms. McQuiston transferred Plaintiff to a floating pharmacist position. (Id.
<J[ 43.) Plaintiff did not object to this transfer, did not inform Ms. McQuiston that he would prefer

to stay at Windber, and did not tell her that he did not want to be a floating pharmacist. (Id. <J[
44.)

Plaintiff admits that Ms. McQuiston's motivation for this transfer was not related to

Plaintiff's age. (Id. <J[ 45.)
In April 2015, Plaintiff went on a leave of absence, and returned in October 2015, as a
floating pharmacist. (Id. <J[<J[ 46-47.) In February 2016, Defendant transferred Plaintiff back to the
staff pharmacist position at the Windber store. (Id. <J[ 48.) In August 2016, Plaintiff went on
another leave of absence through October 2016, and upon his return, Defendant placed him in a
floating position, with the Windber store as his home store. (Id. <J[<J[ 49-50.)

On November 20, 2016, Defendant placed Megan Frazer-who was born in 1992-in the
staff pharmacist position at the Windber store. (Id. <J[ 51.) Plaintiff cjlid not complain to Ms.
McQuiston about being placed in a floating pharmacist position, and d~d not express a desire to
return to a staff pharmacist position following his leave. (Id. <J[ 52.) ~ fact, Plaintiff told Ms.
McQuiston on multiple occasions that he preferred the floating pharm1cist position, because he
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did not like the monotony of being assigned to the same store every day. (Id. 154.) The first time
Plaintiff ever expressed a desire to be a staff pharmacist was during his Herformance review with
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Ms. McQuiston in April 2017-five months after Ms. Frazer was hired. (Id. 156.)
B. Rite Aid's Reorganization of Plaintiff's Region

In March 2018, Rite Aid reorganized its districts and assigned Plaintiff to a new
supervisor, Robert McEvoy. (Id. 156.) In November 2018, Rite Aid reduced the base hours for
all floating pharmacists in Plaintiff's region to 60 hours per pay period. (Id. 159.)
Plaintiff never complained to Rite Aid about his hours being reduced and never
complained that he thought the reduction was discriminatory in any way. (Id. 1 62.) Plaintiff
never told Ms. McQuiston or Mr. McEvoy that he preferred and wanted to be a staff pharmacist
instead of a floating pharmacist. (Id. 163.) Plaintiff was never told that if he did not take a certain
position and/or opportunity offered to him he would be terminated. (Id. 1 64.) Plaintiff never
made a complaint to anyone at Rite Aid regarding the terms or conditions of his employment,
including any acts or circumstances of discrimination. (Id. 1 67.) Except for his two rehirings
after resigning employment with Rite Aid, Plaintiff has never applied for a position within Rite
Aid. (Id. 169.)
No one at Rite Aid, including Ms. McQuiston, ever made any comments about Plaintiff's
age. (Id. 170.) Ms. McQuiston never acted discrirninatorily towards Plc1tintiff on the basis of his
gender. (Id. 171.)
C. Rite Aid's Pharmacist Positions
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Rite Aid maintains two types of salaried pharmacist position~-staff pharmacist and
floating pharmacist. (ECF No. 32 1 6.) The positions are considered to be coequal, and any
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transfer between the two positions is considered lateral. (Id. <[ 7.) ~e qualifications for the
positions are the same, and the same job description is used for each. (Id.I<[ 8.) A staff pharmacist
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is assigned to specific store and works there on a regular basis and may{ at times, be required to
cover another store. (Id.<[ 9.) A floating pharmacist is assigned to a spe~ific store, works several
shifts from that store, and also "floats" to other stores where coverage is;needed. (Id.<[ 10.) Staff
and floating pharmacists receive the same benefits and opportunities

IV.

fo* promotion. (Id.<[ 11.)

Procedural Background
On January 22, 2018, Plaintiff filed the Complaint (ECF No. 1), w~ich Defendant answered

on April 16, 2018 (ECF No. 7). Defendant moved for summary judgment on June 17, 2019. (ECF
No. 30.) Plaintiff responded in opposition on July 17, 2019, (ECF No. 34), to which Defendant
replied on July 31, 2019. (ECF No. 41.)

V.

Legal Standard
This Court will grant summary judgment "if the movant shdws 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); Melrose, Inc. v. Pittsburgh, 613 F.3d 380,387 (3d Cir. 2010) (quoting Ruehl v. Viacom,

Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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There is a genuine issue of fact "if the evidence is such that a reasonable Nry could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 1.J.S. 242, 248 (1986); see

also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material fact~ are those that affect the
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outcome of the trial under governing law. Anderson, 477 U.S. at 248. ~e Court's role is "not to
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weigh the evidence or to determine the truth of the matter, but only to 4etermine if the evidence
of record is such that a reasonable jury could return a verdict for the ronmoving party." Am.
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Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009).

i1n deciding
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a summary

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judgment motion, this Court "'must view the facts in the light most fav~rable to the nonmoving
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party and draw all inferences in that party's favor."' Farrell v. Planters LJesavers Co., 206 F.3d 271,
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278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).
The moving party bears the initial responsibility of stating the basis for its motion and
identifying those portions of the record that demonstrate the absenc~ of a genuine issue of
material fact. Celotex, 477 U.S. at 323. If the moving party meets this butden, the party opposing
summary judgment "may not rest upon the mere allegations or denials" of the pleading, but
"must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart

Corp., 260 F.3d 228,232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574,587 n.11 (1986)). "For an issue to be genuine, the nonmovant needs to supply more than
a scintilla of evidence in support of its position-there must be sufficient evidence (not mere
allegations) for a reasonable jury to find for the nonmovant." Coolspring Stone Supply v. Am. States

Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993); see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594
(3d Cir. 2005) (noting that a party opposing summary judgment "must present more than just
bare assertions, conclusory allegations or suspicions to show the existen1=e of a genuine issue").

VI.

Discussion
A. The Parties' Arguments
Plaintiff asserts that "evidence of both age and gender disctimination exists in the

Defendant's [pr]eference to hire solely from a pool of candidates that .primarily consists of the
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younger, female population."

(ECF No. 35 at 3.) Plaintiff asserts ~at he has consistently
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demonstrated his aversion to the constant flux in his position as a flfating pharmacist. (Id.)
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Plaintiff contends that he expressed his dissatisfaction with the variatio~s in job responsibilities
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and had twice resigned due to the traveling required as a floating pha~acist. (Id.)
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Plaintiff argues that "[e]very supporting fact identified in !Defendant's Motion is
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developed by conjecture" and does not provide "legitimate facts" tha~ can support summary
judgment. (Id.) Instead, the "fair and prudent decision" is to "permit ¢mpirical information to
be evaluated before a jury." (Id.) Plaintiff asserts that four Rite Aid emp~oyees, each of who were
younger, had less experience, and had less training and education tharl Plaintiff, were hired as
staff pharmacists instead of Plaintiff. (Id. at 7-8.)
Defendant argues that Plaintiff cannot show that Rite Aid discriminated against Plaintiff
on either the basis of his age or his gender. (ECF No. 31 at 2.) Defend~t argues that Plaintiff's
transfer from staff pharmacist to floating pharmacist was not an adverse employment action. (Id.
at 4.) The two positions are considered to be coequal and any transfer between the two positions
is considered lateral. (Id. at 5.) There is no difference in rank, pay benefits, or opportunities for
promotion. (Id.) Defendant asserts that Plaintiff never once complained about working as a
floating pharmacist and never told anyone at Rite Aid that he preferred,to be a staff pharmacist.
(Id. at 6.)

Defendant argues that Ms. McQuiston's decision to have Ms. F~azier replace Plaintiff at
the Windber store after his leave of absence was not motivated by either age or gender. (Id. at 7,
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13.) Ms. McQuiston made this decision because she believed that Plbintiff preferred being a

floating pharmacist, a preference which he previously expressed to her1 (Id.) Defendant asserts
that Plaintiff admits that Ms. McQuiston's decision to transfer Plaintiff was not motivated by
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either age or gender. (Id. at 10, 14.) Plaintiff cannot show that the proffe~ed reasons for Plaintiff's
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assignment to a floating pharmacist position are pretextual. (Id. at 9, 14.~
Defendant next asserts that although the reduction in base :hours was an adverse
employment action, it was made for non-discriminatory reasons. (Id. at! 8.) Rite Aid underwent
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a reorganization of the hours structure for all floating pharmacists ip Plaintiff's region and
reduced the hours for all floating pharmacists regardless of age to 60 hours. (Id.) Plaintiff cannot
show that the proffered reasons for Plaintiff's reduction in hours are pretextual. (Id.)

B. Defendant Is Entitled to Judgment as a Matter of Law on Plaintiff's ADEA
Claim Because Plaintiff Has Failed to Establish a Prima Facie Case of Age
Discrimination
Plaintiff asserts that he was subject to discrimination because of his age. The ADEA makes
it unlawful for an employer to discriminate against an individual with respect to his employment
on the basis of the individual's age. 29 U.S.C. § 623(a). It is undisputed that during the period of
time relevant to this case, Defendant was an "employer" subject to the ADEA's provisions, and
Plaintiff was an "employee" entitled to statutory protection from age-based discrimination.
§ 630(b ), (f).

Since this is an employment discrimination case in which no "direct evidence" of
discrimination is presented, the Supreme Court's framework in McDonn¢ll Douglas Corp. v. Green,
411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981),
provide the formulation for allocating the requisite burdens of proof and production for purposes
of the instant motion for summary judgment.2 Keller v. Orix Credit Allfance Inc., 130 F.3d 1101,
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The McDonnell Douglas-Burdine burden-shifting framework does not ~pply in an employment
discrimination case in which "direct evidence" of discrimination is presented. $wierkiewicz v. Sorema N.A.,
534 U.S. 506, 511 (2002). "Direct evidence" of discrimination is evidenctl that is "so revealing of
2

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1108 (3d Cir. 1997). In an employment discrimination case of this kin4, the plaintiff must first

establish a prima facie case of illegal discrimination. Id. If the plaintiff est~blishes a prima facie case
of discrimination, the defendant must articulate legitimate, nondisqriminatory reasons for
treating the plaintiff in an adverse manner.

Id.

If the defendant articulates legitimate,

nondiscriminatory reasons for the plaintiff's adverse treatment, the plmntiff must demonstrate
that the reasons given by the defendant for such treatment are merely a pretext for unlawful
employment discrimination. Id.
To establish a prima facie case under the ADEA, Plaintiff must demonstrate that: (1) he is
a member of the protected class; (2) he was qualified for the position; (3) he was subject to an
adverse employment action; and (4) that he was ultimately replaced by another employee who
was sufficiently younger to support an inference of discriminatory animus. Smith v. City of

Allentown, 589 F.3d 684, 689 (3d Cir. 2009).
Here, it is undisputed that Plaintiff is a member of a protected class because he is over
forty years old. It is also undisputed that he was qualified for the s~aff pharmacist position
because he held that position previously. Plaintiff asserts that two actions by Defendant were
adverse employment actions that were made on the basis of age: (1) P~aintiff's placement in a
floating pharmacist position in November 2016, and (2) a reduction in 9ase hours in November
2018. The Court addresses each of these contentions in tum.

discriminatory animus that it is not necessary to rely on any presumption" from the plaintiff's prima facie
case to shift the applicable burden of production to the defendant. Starceski v. Westinghouse Electric Corp.,
54 F.3d 1089, 1096 n.4 (3d Cir. 1995). The evidence presented in this case dioes not constitute "direct
evidence" of discrimination.

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1. Plaintiff Has Failed to Establish that Assi~ment to a Floating
Pharmacist Position is an Adverse Employmen!t Action
Plaintiff must allege an adverse employment action to establish a prima facie case of age
discrimination. Id. An "adverse employment action" is an action by an f!mployer that is "serious
and tangible enough to alter an employee's compensation, terms, con~itions, or privileges of
employment." Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2qo4). Minor actions, such
as lateral transfers and changes of title, are generally insufficient to constitute adverse
employment actions. Langley v. Merck & Co., Inc., 186 F. App'x 258, 260 (Sd Cir. 2006). A transfer
may be an adverse employment action if the new position "is inferior to, rather than merely
different from" the employee's previous position or, stated differently, if the transfer is an
"adverse transfer." Id.; Washco v. Fed. Express Corp., 402 F. Supp. 2d 547, 558 (E.D. Pa. 2005).
Here, it is undisputed that the positions of staff pharmacist and floating pharmacist are
considered to be coequal, and any transfer between the two positions is considered lateral. The
qualifications for the positions are the same, and the same job description is used for each. Staff
and floating pharmacists receive the same benefits and opportunities for promotion. The only
difference between the position is where the employee reports for work each day. Plaintiff has
not shown that the transfer between staff pharmacist and floating pharmacist was an adverse
transfer. Plaintiff has not shown how the floating pharmacist position was inferior to the staff
pharmacist position. The Court holds that Plaintiff's placement into a floating pharmacist
position was not an adverse employment action within the meaning of t;he ADEA.

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2. Plaintiff Has Failed to Establish that His Redtfction in Was Made on
the Basis of His Age
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The parties do not dispute that the reduction in Plaintiff's hours was an adverse
employment action because it affected his compensation. Defendant qontends, however, that
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Plaintiff cannot show that age played any role in the decision to reduc~ his hours. The Court
agrees.
Here, the record establishes that Rite Aid reorganized its districts in 2018 and, as a result
of that reorganization, the base hours for all floating pharmacists in •Plaintiff's region were
reduced to 60 hours per pay period. Plaintiff has not shown that that his age was a factor in the
decision to reduce his hours or was a factor in the decision to reduce the hours of floating
pharmacists generally. Moreover, Plaintiff never complained to Rite Aid about his hours being
reduced, and never complained that he thought that the reduction wa$ discriminatory in any
way. The Court holds that the reduction in Plaintiff's hours was not discriminatory and was
instead made for legitimate, non-discriminatory reasons that applied to all floating pharmacists.
Because Plaintiff has failed to establish a prima fade case of age discrimination, Defendant
is entitled to summary judgment on Plaintiff's age discrimination claim.
C. Defendant Is Entitled to Judgment as a Matter of Law ()n Plaintiff's Title VII

Claim Because Plaintiff Has Failed to Establish a Primd Facie Case of Gender
Discrimination
Plaintiff also asserts that he was subject to discrimination because of his gender. Title VII
makes it unlawful for employers to discriminate against an employee ibecause he has filed a
charge with the EEOC. 42 U.S.C. § 2000e-3(a). The McDonnell-Douglas framework also governs
Title VII gender discrimination claims for which no direct evidence of d~scrimination is offered.

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Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318 (3d Cir. 200p). If the plaintiff first
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articulates a prima facie case of discrimination, the employer must thef come forward with a
legitimate, non-discriminatory reason for the discharge. Id. at 319. If the employer produces a
legitimate, non-retaliatory reason, the Plaintiff then shoulders the burden of proving that
legitimate reason is pretextual, and that retaliation was the true ground £pr termination. Id.
To establish a prima Jacie case of gender discrimination under title VII, Plaintiff must
demonstrate that: (1) he is a member of the protected class; (2) he was q4alified for the position;
(3) he was subject to an adverse employment action; and (4) existence rf circumstances which
give rise to an inference of prohibited discrimination. Wood v. Univ. of Pittsburgh, 395 F. App'x
810, 814 (3d Cir. 2010).
Here, it is undisputed that Plaintiff is a member of a protected cfass because he is a man.
It is also undisputed that he was qualified for the staff pharmacist positibn because he held that

position previously. Plaintiff asserts that his placement in a floating pharmacist position in
November 2016, was an adverse employment action made on the basis of his gender.
As discussed, Plaintiff cannot establish that his placement intd a floating pharmacist
position was an adverse employment action. See supra Section VI.B.l. Without evidence of an
adverse employment action, Plaintiff cannot make out a prima Jacie case of gender discrimination
under Title VII. Defendant is therefore entitled to summary judgme:qt on Plaintiff's gender
discrimination claim.
VII. Conclusion
For the forgoing reasons, the Court grants Defendant's Motion fqr Summary Judgment.
An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
j

'

CARY J. CUPPETT,

Case No. 3:18-cv-14

)
)

Plaintiff,

JUDGE KIM R. GIBSON

)
)

v.

)
)

RITE AID OF PENNSYLVANIA, INC.,

)
)

Defendant.

NOW, this

a

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)

ORDER

day of October, 2019, upon consideration of Oefendant's Motion for

Summary Judgment (ECF No. 30), and for the reasons set forth in the accompanying
Memorandum Opinion, it is HEREBY ORDERED that said Motion is GRANTED. Plaintiff's
Complaint is dismissed with prejudice.

BY THE COURT:

~~

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE