Tuesday, October 26, 2010

Federal Court Allows Age and Gender Discrimination Claims Against Rite-Aid To Proceed

In Lazzaro v. Rite Aid Corporation, 09-cv-1140 (W.D. Pa. 8/17/2010), the U.S. District Court for the Western District of Pennsylvania permitted age and gender discrimination claims filed against Rite Aid Corporation under the Age Discrimination in Employment Act (ADEA), Title VII and the Pennsylvania Human Relations Act (PHRA), to proceed to trial.

Plaintiff, Joann Lazzaro, a 55 year old female, had worked for Rite Aid and its predecessor companies for thirty-six years, beginning on June 20, 1972. She began her career with Brooks/Eckerd stores, and transitioned to Rite Aid after Rite Aid acquired Brooks/Eckerd. After her Brooks/Eckerd store was closed in October of 2007, Lazzaro was transferred as Store Manager to a Rite Aid store located in Wilkinsburg, PA.

In February of 2008, Jeff Suriano, a 37 year old male, became Lazzaro's supervisor when he was made the Rite-Aid District Manager responsible for the Wilkinsburg store. During his first visit to the Wilkinsburg store, Suriano stated to Lazzaro that he thought she was retiring, noting that she had worked there for 30 years. Lazzaro corrected him, noting that it would be thirty-six years in June. In turn, Suriano commented "that's almost as long as I have been born," and further mentioned that he "swore he heard that she was retiring," on at least two other subsequent occasions.

On March 24, 2008, five of Lazzaro's family members, none of whom were Rite Aid employees, assisted Lazzaro in the Wilkinsburg store by helping her prepare the store for its upcoming inventory. Lazzaro claimed that she told Suriano about this, who said he would "look the other way this time." Suriano, however, denied having any conversations with Lazzaro about her family members working at the Wilkinsburg store. On March 25, Suriano gave Lazzaro a "Written Notice" as a result of the Wilkinsburg store's poor inventory performance.

On May 5, 2008, Suriano and Lynne Shawley, Rite Aid's Human Resources Manager, met with Lazzaro to discuss the Wilkinburg store's poor inventory performance. At this meeting, Suriano raised the issue of Lazzaro's family members working in the Wilkinsburg store. Lazzaro admitted that she had her family members perform work at the Wilkingsburg store, but stated that Suriano knew that it was happening. Suriano again denied having any knowledge of Lazzaro's family members working at the Wilkinsburg store prior to March 24, 2008. During this meeting, Shawley also commented to Lazzaro that she had heard that Lazzaro was "always complaining about aches and pains," and that she "was very slow to catch on to the new Rite Aid system." At the close of the meeting, Shawley informed Lazzaro that an investigation would be conducted regarding the extent to which she permitted her family members to work at the Wilkinsburg store.

Later, at Shawley's request, Lazzaro provided a written statement that approximated the amount of time her family members had worked at the Wilkinsburg store. Shawley then suspended Lazzaro for her alleged misconduct, but did not suspend Suriano for his alleged knowledge of Lazzaro's family members working at the Wilkinsburg store.

On June 2, 2008, Shawley submitted a recommendation to the Senior Resources Manager for Rite Aid that Lazzaro be terminated. Subsequent discussions between and among upper-level Human Resources individuals and management for Rite Aid Corporation approved Shawley's recommendation. At Shawley's instruction, Suriano called Lazzaro on June 3, 2008 and informed her that she had been terminated.

Following Lazzaro's termination, Rite Aid transferred a 25-year-old male to fill the Store Manager position at the Wilkinsburg store that had been vacated by Lazzaro. During her previous thirty-six years of employment, Lazzaro had never received any disciplinary action or performance warnings from Rite Aid or its predecessors.

On November 21, 2008, Lazzaro filed an EEOC charge against Rite Aid, alleging age and gender discrimination. Following the filing of Lazzaro's EEOC charge, Rite-Aid terminated at least four other store mamagers, aged 45, 37, 55 and 47, for permitting individuals who were not Rite Aid employees to perform work at their respective stores. Rite Aid then replaced these terminated store managers with individuals who were aged 27, 24, 34 and 57.

In her subsequent lawsuit, Lazzaro claimed that her discipline and termination were discriminatory actions against her based upon her age and/or gender, and that Rite Aid's reasons for terminating her were mere pretext. Rite Aid filed a motion for summary judgment, arguing that it had legitimately and properly terminated Lazzaro for permitting non-employees to work at the Wilkinsburg store and that Lazzaro had failed to establish any evidence of discrimination.

The District Court denied Rite Aid's motion for summary judgment, and permitted Lazzaro's claims to proceed to a jury. Contrary to Rite Aid's assertions, the Court held that Lazzaro had submitted enough conflicting evidence that could allow a jury to determine that Rite Aid's proffered reasons for terminating Lazzaro were mere pretext. Specifically, the Court noted that: (1) during Suriano's first visit to the Wilkinsburg store, he had made comments about Lazzaro retiring and about her age; and (2) during the May 5, 2008 meeting, Shawley had made comments about Lazzaro complaining about aches and pains and being "slow to catch on to the new Rite Aid system." The Court also found that there existed a factual dispute as to whether or not Suriano actually knew that Lazzaro's family members were working at the Wilkinsburg store. The Court noted that the determination of this factual dispute could allow a jury to draw reasonable inferences as to whether Lazzaro's disparate treatment was meritorious, and could enable them determine whether Rite Aid treated Suriano, a younger male, differently than Lazzaro, an older female.

The Court also pointed to the fact that Lazzaro was the first store manager fired for allowing non-employee family members to work at her store. And, there was no evidence offered to establish that Rite Aid had a policy prohibiting non-employees from volunteering their services, nor any Rite-Aid policy that permitted immediate termination for allowing such an activity.

Ultimately, the Court concluded that it was the jury's job to determine whether Rite Aid was using terminations for violations of an unwritten company policy as pretext, thus promoting the inference that a pattern of terminations existed where older store managers were being replaced with younger ones. Put another way, "[s]imply providing the Court with evidence that defendant has terminated other store managers for the same reason as [Lazzaro] in no way legitimizes a pattern of termination that a reasonable fact-finder may otherwise conclude is pretext."