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Jacques-Scott v. Sears Holding Corporation

United States District Court, Third Circuit

June 13, 2013

COLLETTE JACQUES-SCOTT, Plaintiff,
v.
SEARS HOLDING CORPORATION, a Delaware corporation, and SEARS, ROEBUCK AND CO., a foreign corporation, Defendants.

REPORT AND RECOMMENDATION

MARY PAT THYNGE, Magistrate Judge.

I. Background

A. Procedural Posture[1]

This action was initiated on May 20, 2010, via a pro se complaint[2] filed by Collette Jacques-Scott ("plaintiff") against Sears Holding Corp. and Sears, Roebuck and Co. ("defendants"). The complaint alleged (1) sex discrimination, (2) race discrimination, (3) hostile work environment, (4) retaliation, (5) slander, (6) libel, (7) breach of the covenant of good faith and fair dealing, and (8) violation of § 11(c)(2) of the Occupational Safety and Health Act ("OSHA").

On September 29, 2010, defendants filed a motion to dismiss.[3] On March 22, 2011, this court issued a report and recommendation to grant defendants' motion with respect to libel and slander, breach of the covenant of good faith and violation of § 11(c)(2) of OSHA.[4] On August 8, 2011, the Honorable Leonard P. Stark adopted the March 22, 2011 report and recommendation, [5] leaving only the Title VII claims of gender and race discrimination, hostile work environment, and retaliation.[6] Presently under consideration is defendants' motion for summary judgement on these claims.[7]

B. Factual Background

Plaintiff began employment with defendants as a loss prevention manager on January 28, 2008.[8] Defendants' employees, Michael Filippone ("Filippone"), district loss prevention manager, and David Elzey ("Elzey"), store manager, hired plaintiff.[9] Her primary work site was the Sear's retail store at the Dover Mall in Dover, Delaware.[10] Plaintiff was discharged on June 11, 2008.[11]

Her complaint and answering brief[12] outline events which allegedly describe discrimination and a hostile work environment.[13] Plaintiff first describes the relationship of Charles Thompson ("Thompson"), multi-unit loss prevention coach, with another employee, Sammantha, when he was a loss prevention coach.[14] Plaintiff states that instead of training her, Thompson would "bypass the training and set the closed circuit television ("CCTV") cameras on Sammantha[s] post and observe her all day, "[15] which is "a complete violation of Policy" which should have resulted in both parties being terminated.[16] Instead, Sammantha was terminated and Thompson was transferred with higher pay."[17] After Thompson was transferred, Sammantha was rehired.[18]

Plaintiff claims Thompson also sexually harassed a loss prevention associate, Leah, at defendants' Annapolis store. While at the Annapolis store for training, she states Thompson would watch Leah, and comment "about her appearance as being sexy and shapely" to plaintiff.[19] Plaintiff told Thompson to stop his comments since she was there for training, "not to watch or [hear] about [Leah]."[20] Plaintiff reported Thompson's behavior to district loss prevention coach, Filippone.[21] She asserts she "was under attack by defendants [and Thompson] when she refused to fire a [loss prevention associate, William Skibicki ("Skibicki"), ] because [Skibicki] heard about Leah's sexual harassment claim from another [loss prevention associate/loss prevention coach] located in another Easter District Store."[22]

Plaintiff claims despite that all female loss prevention associates, including herself, had completed the required Training Courses for Certification, they were denied certification, [23] while, all males were certified after completing the required training.[24] Because women were not certified, they were denied the associated increase in pay from certification.[25]

Plaintiff claims she suffered verbal abuse by John Bachus ("Bachus"), a black male, who was lead manager of merchandise pick-up/receiving, and by Tom Lyon ("Lyon"), a white male, lead manager of lawn/gardens. She contends male associates were rarely sanctioned for offensive behavior towards females associates."[26] Finally, she argues she was disciplined for conduct for which male associates were not, [27] generally claiming female employees were subject to "meritless charges for [the] sole purpose of justifying sanctions, [and]... on charges for conduct for which men associates are not brought up on..."[28]

Plaintiff also describes an encounter with Cindy Dayton ("Dayton"), a white female operation coach for the Salisbury, Maryland store, who "removed Plaintiff from inventory to an isolated and designated area away from the inventory process"[29] allegedly because of her race. Plaintiff had been assigned to observe the inventory process at defendants' Salisbury store on March 9, 2008.[30] She claims she did not receive the email to report to the Salisbury store because the Dover stores computers "were not acting right."[31] Filippone contacted her at the Dover store, and inquired as to why she failed to appear at the Salisbury store.[32] After a brief conversation, it was decided plaintiff would report to the Salisbury store the next day.[33] When she reported on March 10, 2008, she was instructed to observe the inventory process, including the people involved, because an outside agency was assisting with the inventory.[34]

At some point, plaintiff and Dayton got into a verbal altercation.[35] According to plaintiff, Dayton asked plaintiff to follow her to the receiving area, [36] and directed plaintiff to sit at a table and monitor the inventory via a closed circuit television.[37] When plaintiff inquired whether this was the standard procedure for loss prevention managers during inventory, Dayton started yelling at plaintiff, [38] and then left. Thereafter, Filippone called plaintiff, and yelled at her to leave the store.[39] Plaintiff relates Filippone said "I want you out of the building, you could put your keys on the desk when you get back to your building and leave, your [store coach] does not even want you in your own building."[40] While returning to the Dover store, Filippone contacted plaintiff again, and told her to return to work the next day. Despite plaintiff asking Filippone to review the CCTV tapes, [41] he refused.[42] Plaintiff maintains the conduct of Dayton and Filipone constitutes discrimination because:

First of all, I was the only female - and not only that, the only black female there. And this white female is going to segregate me away from the whole process and leave just the males there where most of the population of the people doing the inventory is females, which is greatly a messed up thing to do when you are dealing with an organization with all these outside people in your area.
She, [Dayton, ] disrespected me. She disrespected me and discriminated and segregated me. He, [Filippone, ] on the other hand, did as well because he was suppose to pull that tape...[43] Plaintiff describes other events as discriminatory, including an email from

Thompson in which he stated: "you can go this alone if you want, but if you want my help, then humble yourself just enough, learn and move forward."[44] Another incident described in her deposition was a comment by Lyon, "[w]ell, we want Charles back because it's better if a man is here."[45] In an undated email, plaintiff wrote to Thompson claiming Lyon yelled at her, called her stupid, and questioned her work.[46] Plaintiff also accuses Bachus, who allegedly stated that since she was female, "[w]e don't have to listen to you. You don't even have your certification."[47] In another undated email sent to esmit96@searshc.com, plaintiff describes Bachus' tone of voice as aggressive constituting a pattern of disrepect.[48]

Plaintiff describes other incidents of alleged discrimination because she tried to enforce defendants' procedures, for example, the "Cash and Pick up Procedures."[49] Thompson trained plaintiff to "escort a Manager to pickup a cash and [have loss prevention]... sign the bag that they were present, "[50] which she felt conflicted with defendants' written procedure, and so advised Thompson.[51] Thompson subsequently sent plaintiff a series of emails regarding the cash pick procedures, [52] which she claims were discriminatory because he acted like she was trying to change the rules.[53] She also maintains Thompson's behavior was discriminatory

because while [Thompson] was in the same position as [plaintiff] as a loss prevention manager in Dover, he violated all these procedures. And now that I'm - a female in that position, he has been working to get back into that position for a long period of time.[54]

During her deposition, plaintiff identified other purportedly discriminatory emails, including one from Thompson which stated:

I am more than willing to help with any problems that you may have concerning loss prevention issues and you, on the other hand, have to be more relaxed and open-minded to the way things are done here at sears.[55]

According to plaintiff, Thompson's comment is discriminatory because by using the term "done here, " he was "saying because I am a female worker in [Thompson's] position that [he] worked that I am suppose to go along with this men program?"[56] In another example, plaintiff reports Thompson advised her to "wing it" when doing audits and he indicated that "he doesn't put the truth."[57] She argues Thompson's training was discriminatory since his approach was contrary to defendants' procedures.[58]

According to plaintiff, Thompson reported her to Filippone for questioning procedures.[59] She claims she contacted human resources after Filippone threatened to fire her.[60] She also maintains because of her complaint to human resources, of which Filippone was aware, he canceled the next loss prevention coaches' meeting, and "set up numerous task [sic] for Plaintiff ...


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