UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NICOLE PELUSO, : CIVIL NO. 4:04-CV-2211

:

Plaintiff : (Magistrate Judge Smyser)

:

v. :

:

UNI-MARTS, L.L.C., :

:

Defendant :

MEMORANDUM AND ORDER

This civil action states a claim of employment

discrimination, the alleged termination of the plaintiff’s

employment based on the plaintiff’s pregnancy. The complaint

was filed on October 7, 2004. The cause of action is brought

under Title VII of the Civil Rights Act of 1964, as amended by

the Civil Rights Act of 1991, 42 U.S.C. § 2000(e), et seq. The

jurisdiction of the court is under 28 U.S.C. § 1331. A pendant

state law Pennsylvania Human Relations Act claim also is

brought. 

The complaint alleges that plaintiff Nicole Peluso

began working for defendant Uni-Mart as a store sales clerk on

or about April 20, 2002, informed her store manager on or about

April 12, 2003 that she was pregnant, and was fired on May 21,

2003 for wearing her Uni-Mart hat sideways. She had not

previously been disciplined. She was qualified for her

position. Two non-pregnant co-workers several days prior to

the plaintiff’s termination had been disciplined for not

wearing their hats and were not terminated. The complaint

states that the store manager told her that the company was

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losing money and that she was an added expense. The plaintiff

seeks an award of back pay, front pay, lost benefits,

injunctive relief, compensatory and punitive damages, interest,

costs and attorneys fees. Trial is scheduled for October 3,

2005 and a pretrial conference is scheduled for September 22,

2005. 

A summary judgment motion was filed by the defendant on

July 8, 2005. A brief in support was filed on that date. 

Doc. 26. A LR 56.1 statement of undisputed facts was filed,

Doc. 29, with documentation (Doc. 30). A brief in opposition

(Doc. 34) and responsive LR 56.1 statement (Doc. 35) were filed

on July 25, 2005. A reply brief (Doc. 37) was filed on

August 3, 2005. The defendant argues that it is entitled to

summary judgment in its favor as to portions of the plaintiff’s

damages claims. It also argues that it is entitled to summary

judgment as to the plaintiff’s pregnancy discrimination claim. 

 Summary judgment is appropriate if "there is no

genuine issue as to any material fact and . . . the moving

party is entitled to judgment as a matter of law." 

Fed.R.Civ.P. 56(c); see also Turner v. Schering-Plough Corp.,

901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary

judgment bears the burden of showing the absence of a genuine

issue as to any material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986); Young v. Quinlan, 960 F.2d 351, 357 (3d

Cir. 1992). After such a showing has been made, the nonmoving

party cannot rely upon conclusory allegations in its pleadings

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or in memoranda and briefs to establish a genuine issue of

material fact. Rather, the nonmoving party must go beyond the

pleadings and offer specific facts contradicting the facts

averred by the movant which indicate that there is a genuine

issue for trial. Lujan v. National Wildlife Fed'n, 497 U.S.

871, 888 (1990); Fed.R.Civ.P. 56(e). "Once the moving party

has carried the initial burden of showing that no genuine issue

of material fact exists, [citation omitted] the nonmoving party

. . . 'must make a showing sufficient to establish the

existence of every element essential to his case, based on the

affidavits or by the depositions and admissions on file.'" 

Pastore v. Bell Tel. Co. of Pennsylvania, 24 F.3d 508, 511 (3d

Cir. 1994) (quoting Harter v. GAF Corp., 967 F.2d 846, 852 (3d

Cir. 1992)). 

To determine whether the nonmoving party has met his or

her burden, the court must focus on both the materiality and

the genuineness of the factual issues raised by the non-movant.

"[T]he mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be

no genuine issue of material fact." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A

disputed fact is material when it could affect the outcome of

the suit under the governing substantive law. Id. at 248. A

dispute is genuine if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Id. at

250. If the court determines that "the record taken as a whole

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could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" 

Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574,

587 (1986) (quoting First Nat. Bank of Ariz. v. Cities Service

Co., 391 U.S. 253, 289 (1968)). All inferences, however,

"'should be drawn in the light most favorable to the non-moving

party, and where the non-moving party's evidence contradicts

the movant's, then the non-movant's must be taken as true.'" 

Pastore, 24 F.3d at 512 (quoting Big Apple BMW, Inc. v. BMW of

N. America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert.

denied, 507 U.S. 912 (1993)).

The parties have both argued this case within the

context of this summary judgment motion as a pretext case to

which the burden-shifting framework of McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1972), applies. “This framework has

three steps: (1) the plaintiff bears the burden of establishing

a prima facie case of discrimination; (2) the burden then

shifts to the defendant, who must offer a legitimate nondiscriminatory reason for the action; and (3) if the defendant

satisfies this burden, the plaintiff must then come forth with

evidence indicating that the defendant’s proffered reason is

merely a pretext.” McNemar v. Disney Store, Inc., 91 F.3d 610,

619 (3d Cir. 1996).

There is no rigid formulation of a prima facie case

under McDonnell Douglas and the requirements may vary with

different factual situations. Matczak v. Frankford Candy &

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Chocolate Co., 136 F.3d 933, 938 (3d Cir. 1997). Basically, a

prima facie case is comprised of the following four elements:

(1) the plaintiff belongs to the protected class; (2) the

plaintiff was qualified; (3) the plaintiff was rejected or

fired; and (4) after the rejection or firing, the employer

sought applicants with the plaintiff’s qualifications. Id. at

939. As an alternative to the fourth element, a plaintiff can

show that the position was filled with a person not belonging

to the protected category. Id.; Olson v. General Elec.

Astrospace, 101 F.3d 947, 951 (3d Cir. 1996).

The defendant does not argue for purposes of this

summary judgment motion that the plaintiff can not establish a

prima facie case of pregnancy discrimination. Rather, the

defendant assumes that the plaintiff can make out a prima facie

case and argues that it had legitimate non-discriminatory

reasons for the plaintiff’s discharge. See Doc. 26 at 18. We

will also assume for purposes of this summary judgment motion

that the plaintiff can establish a prima facie case.

If a plaintiff establishes a prima facie case, the

burden of production shifts to the defendant to articulate 

some legitimate nondiscriminatory reason for the adverse

employment decision. Fuentes v. Perskie, 32 F.3d 759, 763 (3d

Cir. 1994). An employer satisfies its burden of production by

introducing evidence which would permit the conclusion that

there was a nondiscriminatory reason for the unfavorable

employment decision. Id. “The employer need not prove that the

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tendered reason actually motivated its behavior, as throughout

this burden-shifting paradigm the ultimate burden of proving

intentional discrimination always rests with the plaintiff.”

Id. 

The defendant has articulated non-discriminatory

reasons for the plaintiff’s discharge.

Once the defendant meets its relatively light burden by

articulating a legitimate reason for the firing, the burden of

production rebounds to the plaintiff. To defeat summary

judgment the plaintiff must point to some evidence, direct or

circumstantial, from which a fact finder 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. Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir. 1994). To avoid summary judgment, “the plaintiff’s

evidence rebutting the employer’s proffered legitimate reasons

must allow a fact finder reasonably to infer that each of the

employer’s proffered non-discriminatory reasons was either a

post hoc fabrication or otherwise did not actually motivate the

employment action (that is, the proffered reason is a

pretext).” Id. (citations omitted). “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 a discriminatory animus

motivated the employer, not whether the employer is ‘wise,

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shrewd, prudent, or competent.’” Brewer v. Quaker State Oil

Refining Corp., 72 F.3d 326, 331 (3d Cir. 1995). Rather, the

plaintiff must demonstrate “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in the

employer’s proffered reasons that a reasonable fact finder

could rationally find the proffered reasons unworthy of

credence and infer that the employer did not act for those

asserted reasons. Fuentes, supra, 32 F.3d at 765.

The defendant’s motion for summary judgment will be

denied because there is a genuine issue as to whether the

defendant employer terminated the plaintiff employee because

the employee was pregnant and because there is a genuine issue

as to the exact scope and nature of damages to which the

plaintiff would be entitled assuming a verdict in her favor on

the liability issue(s) and is a genuine issue as to each

distinct portion of the plaintiff’s alleged damages. 

As noted already, we proceed assuming that the

plaintiff’s evidence is adequate to establish a prima facie

case of pregnancy discrimination. The defendant argues,

however, that in that the employer defendant has articulated a

non-discriminatory reason for the plaintiff’s termination, thus

shifting the burden to the plaintiff to show that reason to

have been a pretext, the defendant’s motion for summary

judgment is meritorious because the employer defendant based

its decision to terminate on non-discriminatory reasons. The

defendant’s brief argues the existence of a factual basis to

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discipline the plaintiff for her violation of company hat

wearing policy and also argues the record of the defendant of

accommodating maternity leave as a factor negating an inference

of a pregnancy based discriminatory firing. 

The defendant’s statement of the issues presented by

the summary judgment motion is “(1) whether the plaintiff

completely withdrew from the labor force so as to prevent her

from obtaining back pay and front pay damages for certain

specified withdraw periods; and (2) whether Uni-Mart had a

legitimate non-discriminatory reason to terminate plaintiff’s

employment that was not related to her pregnancy.” We consider

it to be significant in the context of a summary judgment

motion, that the defendant states factual issues and presents

factual arguments. The summary judgment issue whether there is

a genuine dispute as to a material factual issue is itself a

legal issue. The court does not decide factual issues in

deciding a summary judgment motion. 

Upon our review of the summary judgment evidence and of

the LR 56.1 statements, we conclude that there is evidence that

might be seen by the jury to support the inference that the

defendant’s invocation of a hat policy violation as the

justification for the plaintiff’s termination is pretextual. 

The plaintiff had not received a written warning for a

violation of hat policy; other workers were issued written

warnings and were not terminated despite multiple hat policy

violations. We also conclude upon our review of this evidence

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that it is not free from dispute that the plaintiff’s

termination was ostensibly or nominally based upon a hat policy

violation. Indeed, even the defendant advances the factual

position that the plaintiff may have been terminated because

she was believed to have cleaned a hot dog grill with Windex. 

Given that the defendant’s evidence does not establish

that the defendant fired the plaintiff on the basis of some

certain and particular finding of cause for termination, it

follows that the court can not say that it is free from factual

dispute that the stated cause for the plaintiff’s termination

was not a pretext for discrimination. 

The defendant’s argument is in part that the plaintiff

was terminated because her overall performance was

unacceptable. In support of this theory, the defendant shows

that on several occasions before her termination, the

plaintiff’s superiors had communications about perceived job

performance deficiencies on her part. However, the fact that

there were such communications does not necessarily support the

inference that the motivation for termination was to address

and to eliminate a combination of these perceived deficiencies. 

The defendant asserts in its brief that the cumulative effect

of isolated incidents permeated up to senior management and

“resulted in multiple communications regarding plaintiff’s

ultimate termination from employment.” Doc. 26, p.18. The

abstract and ambiguous character of this description of the

“undisputed facts” accurately summarizes the defendant’s theory

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as to the motivation for the plaintiff’s firing, but does not

show the issue of the motivation not to be in dispute. 

On the issue whether the plaintiff was terminated for

the actual reason that she had violated company policy, we

conclude that there is a genuine factual dispute and that the

motion for summary judgment must accordingly be denied. 

The defendant asserts that the court should enter

partial summary judgment in favor of the defendant on the issue

of the plaintiff’s claim for lost wages for the period of time

from May 20, 2003 through mid-September 2004 because, the

defendant asserts, it is not in dispute that the plaintiff

failed to attempt to mitigate her damages by seeking other

employment. The employer has the burden of proving a failure

to mitigate. Robinson v. Southeastern Pa. Transp. Auth. Red

Arrow Div., 982 F.2d 892, 897 (3d Cir. 1993). 

The summary judgment issue is whether there is a

genuine issue as to whether the plaintiff failed to mitigate

damages. The parties do not disagree that the plaintiff had

the duty to mitigate damages be seeking and accepting other

substantially equivalent employment. Although the plaintiff’s

evidence of efforts to mitigate her damages is apparently

scant, the issue is genuinely in dispute. Even if the

plaintiff looked for work only on one occasion during the

relevant overall time frame, a range of circumstances may be

presented to the jury to determine the adequacy of efforts to

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mitigate. The plaintiff has not made a strong showing of

attempts to obtain work in her summary judgment papers, but

does note factors such as her pregnancy and her distance from

work sites that may be relevant to the mitigation issue. The

court must proceed very cautiously at the summary judgment

stage and should not peremptorily carve out periods of time

from the period of potential lost wages recovery and declare

those periods beyond the jury’s range of consideration on the

mitigation issue. We do not find the defendant to have

adequately established there to be no issue as to the

proposition that the plaintiff failed to mitigate damages. 

For the foregoing reasons, IT IS ORDERED that the

motion of the defendant for summary judgment is DENIED. 

/s/ J. Andrew Smyser

 J. Andrew Smyser

 Magistrate Judge

Dated: August 11, 2005.

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