HomeMy WebLinkAbout13-0669LISA M. WHITLEY,
v.
Plaintiff
DAILY EXPRESS, INC.,
Defendant
1N THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA `~' ~
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Civil Action -Law ~~` ~
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NOTICE ~ ~ ~~" .
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LISA M. WHITLEY,
v.
IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY,
PENNSYLVANIA
DAILY EXPRESS, INC.,
Defendant
Civil Action -Law
COMPLAINT
AND NOW, TO WIT, this 6th day of February, 2013, comes Plaintiff, Lisa M. Whitley, by
and through her attorney, Solomon Z. Krevsky, Esquire of Clark & Krevsky, LLC and files the
following Complaint:
INTRODUCTION
1.
Plaintiff, Lisa M. Whitley (hereinafter "Plaintiff ") brings this action against her former
employer, Daily Express, Inc., for claims arising under the Pennsylvania Human Relations Act, 43
P.S. ~9~1 et seq (hereinafter "PHRA"), relating to Plaintiff s employment and the unlawful and
discriminatory discharge of Plaintiff's employment effective December 4, 2009.
2.
This is an action brought to remedy violations of Plaintiff's rights under the PHRA and to
redress unlawful discriminatory conduct and employment practices. Plaintiff alleges, inter alia,
that Defendant subjected Plaintiffto unlawful gender discrimination and disparate treatment.
resulting in the unwarranted discharge of Plaintiff's employment effective December 4, 2009.
PARTIES, JURISDICTION AND VENUE
3.
Plaintiff, Lisa M. Whitley, is an adult individual residing in the Commonwealth of
Pennsylvania at 2338 South Market Street, Mechanicsburg, Cumberland County, Pennsylvania
17055 .
4.
Defendant, Daily Express, Inc. is a Pennsylvania for profit corporation, duly organized in
accordance with the laws of Pennsylvania and which regularly conducts business throughout the
Commonwealth of Pennsylvania, including within Cumberland County, with its principal place of
business located at 1072 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013.
5.
Defendant is a national specialized trucking company transporting machinery, equipment,
wind energy products and engineered shipments of extreme oversize commodities
6.
Defendant is an employer as that term is defined by the Pennsylvania Human Relations Act,
43 P. S X951 et seq.
7.
Defendant is subject to the jurisdiction of this Court because, at all relevant times hereto,
Defendant conducted business and/or solicited business within this judicial district. Pa R. Civ. P.
2179(a) (2).
8.
All pre-conditions to the filing of this action, by way of pursuit of administrative remedies,
have been satisfied. Plaintiff timely filed a Charge of Discrimination at the Pennsylvania Human
Relations Commission alleging, inter alia, gender discrimination and disparate treatment.
9.
On September 27, 2011, the Pennsylvania Human Relations Commission issued to Plaintiff
her notice of'right to sue.
10.
At all relevant times hereto, Defendant was acting through its agents, apparent agents,
servants, apparent servants, and/or employees who were authorized and acting within the scope of
authority, course of employment and/or under the direct control of Defendant.
UNDERLYING FACTS
11.
Plaintiff commenced employment with Defendant in or about November 5, 1990.
12.
By approximately 1998, Plaintiff was promoted to the position of Director of Pricing.
13.
When Plaintiff first assumed the position as Director of Pricing, she reported directly to
Defendant's then President, Robert Long.
14.
Approximately two years after Plaintiff became Director of Pricing, she was appointed to
serve (and did serve) on Defendant's Management Team.
15.
By 2009, Plaintiff reported directly to Todd Long (Robert Long's son) who had assumed the
position as Defendant's Chief Executive Officer/President.
16.
By 2009, Plaintiff was one of only two women out of approximately 12 individuals who
served on Defendant's Management Team.
17.
At all relevant times hereto, Plaintiff was a member of a class of individuals protected
against discrimination in the workplace on account of gender, female.
18.
As Director of Pricing, Plaintiff was primarily responsible for setting sales pricing, handling
contracts and auditing/reconciling invoice discrepancies, among other things.
19.
At all times relevant hereto, Plaintiff was qualified to perform all duties associated with her
position as Director of Pricing and carried out such duties in a satisfactory manner.
20.
However, commencing in approximately 2007 and continuing through and including
December 4, 2009, Plaintiff was subject to gender discrimination and disparate treatment in the
workplace by male members of Defendant's Management Team, including but not limited to Todd
Long and Defendant's Vice President of Finance, Harry Smith.
21.
Commencing in approximately 2007 and continuing through and including December 4,
2009, male members of Defendant's Management Team routinely dismissed Plaintiff's authority as
Director of Pricing, challenged Plaintiff s autonomy and decision making, and generally ignored
Plaintiff s management role in the organization.
22.
On the occasions described in the preceding paragraph, male members of Defendant's
Management Team, including but not limited to Mr. Smith, would frequently comment "who does
she think she is".
23.
On other occasions, Plaintiff was told "shit runs downhill... and you're at the bottom... ".
On at least one occasion, this comment was made by Defendant's then Vice-President, Bob Wertz.
24.
On other occasions, male members of Defendant's Management Team attempted to
interfere with Plaintiff s authority to set sales prices by telling others that Plaintiff ``doesn't have
authority to make decisions to send an invoice".
25.
Plaintiff, in fact, possessed authority to set sales prices by virtue of her title as Director of
Pricing and pursuant to direction delegated to her by Robert Long.
26.
The comments described in paragraphs 21 through 23 above evidence Defendant's
corporate culture of gender bias and misogyny, especially during the period of time Todd Long
became and served as Defendant's President.
27.
On December 4, 2009, Plaintiff met with Todd Long who advised Plaintiff that her
employment with Defendant was terminated effective immediately.
28.
Mr. Long advised Plaintiff that the decision to terminate her employment was not related to
performance.
29.
Mr. Long advised Plaintiffthat the decision to terminate her employment was the result of a
downturn in the economy and that Defendant decided to "eliminate your position" in a reduction in
force (hereinafter, "RIF") purportedly in order to cut labor costs.
30.
However, approximately one month after Plaintiff s position was eliminated purportedly
due to Defendant's RIF, Defendant created new positions, which, upon information and belief,
resulted in increased labor costs at its Carlisle terminal.
31.
Thus, Defendant's articulated reason for terminating Plaintiff s employment is a pretext, the
true motive being Plaintiff's gender.
32.
The involuntary and unlawful termination of Plaintiff s employment on the basis of gender
constitutes adverse employment action.
COUNTI
Pennsylvania Human Relations Act
Gender Discrimination/Harassment
33.
Plaintiff hereby repeats and repleads Paragraphs 1 through 32 of this Complaint and
incorporates hereto by reference as though full set forth at length.
34.
The Pennsylvania Human Relations Act ("PHRA") prohibits discrimination and harassment
in the workplace on the basis of gender.
35.
The actions of Defendant, as more fully described above, violate the PHRA.
36.
At all relevant times hereto, Defendant owed a duty to its employees, including Plaintiff, to
provide a workplace free from gender discrimination and disparate treatment.
37.
As more fully described above, Defendant subjected Plaintiff to gender discrimination and
disparate treatment, including but not limited to the following:
a. failing to exercise reasonable care to correct, prevent and/or remedy gender discrimination
in the workplace;
b. intentionally interfering with Plaintiff's ability to perform her job;
c. sabotaging and/or attempting to sabotage Plaintiff's interpersonal relationships at work with
colleagues;
d. lodging false accusations that Plaintiff engaged in misconduct or otherwise performed her
job deficiently or in an unsatisfactory manner.
e. subjecting Plaintiff s work to overly intense and unreasonable scrutiny;
f. falsely asserting that Plaintiff was not a member of Defendant's Management Team;
g. falsely asserting that Plaintiff did not have the authority to set pricing;
h. usurping Plaintiff's responsibilities as Director of Pricing;
i. failing to adhere to its own policy prohibiting gender discrimination in the workplace;
j. failing or otherwise refusing to accept Plaintiff s authority as a manager;
k. belittling Plaintiff and marginalizing her role as a manager and her role on Defendant's
Management Team;
1. fabricating a basis to terminate Plaintiffs employment;
m. terminating Plaintiff's employment without cause effective December 4, 2009.
38.
The events and circumstances described in the preceding paragraph (hereinafter "Unlawful
Gender Discrimination") occurred on a regular basis throughout the work week, and occasionally
more frequently.
39.
Following the termination of Plaintiff s employment, her job duties were assigned to and/or
assumed by an individual or individuals outside of Plaintiff s protected class.
40.
Defendant's purported restructure/reorganization of its workforce resulting in the
elimination of Plaintiffs position amounted to nothing more than a discriminatory sham designed to
intentionally terminate Plaintiff s employment on the basis of her gender.
41.
Upon information and belief, Plaintiff was the only member of Defendant's management
team whose position was eliminated in connection with Defendant's purported RIF.
42.
In connection with Defendant's RIF, 50% of the women who served on Defendant's
management team were terminated.
43.
In contrast, none of the men who served on Defendant's management team were affected by
an adverse employment decision related to Defendant's RIF.
44.
Gender was a motivating factor, and but for Plaintiff s gender Defendant would not have
terminated her employment.
45.
Defendant's policies with respect to gender harassment/discrimination, if any, were utterly
deficient and inadequate to prevent or remedy the unlawful gender harassment/discrimination, as
more fully described above, and hereby exhibit a deliberate indifference to Plaintiff s statutorily
protected rights.
46.
The actions and/or omissions identified above were sufficiently severe and/or pervasive to
alter the terms and conditions of Plaintiffs employment and create an abusive and hostile work
environment, and thereby constitute unlawful gender discrimination and harassment.
47.
Plaintiff believes and therefore avers that she was terminated from employment with
Defendant on account of gender.
48.
Defendant asserted that it terminated Plaintiff s employment on account of the economic
downturn affecting its' industry.
49.
Defendant's proferred reason for terminating Plaintiff s employment was a pretext for
intentional gender discrimination and disparate treatment.
50.
Defendant asserted that Plaintiff s role in the organization was expendable in that she served
as Defendant's Department Manager -Rating.
51.
However, on January 5, 2005, Defendant's then Chief Executive Officer ,Robert F. Long,
authored a memo which identified Plaintiff as Defendant's Director of Pricing.
52.
As Director of Pricing, Plaintiff was responsible for setting sales pricing and possessed the
authority to do so.
53.
Nevertheless, Todd Long routinely usurped her management authority in this regard, often
refused to permit Plaintiff to carry out her job duties as Director of Pricing, and routinely reassigned
those duties to male members of Defendant's management team.
54.
Defendant claims it was forced to engage in a RIF which resulted in the termination of
Plaintiff s employment due to economical business reasons.
55.
However, Defendant expended significant sums of money shortly after Plaintiff's
termination from employment including but not limited to the purchase of an employee's home in
Atlanta and relocation of this employee (John Smith) from its Jacksonville, Florida to Carlisle,
Pennsylvania.
56.
Upon information and belief, Mr. Smith was provided a significant raise upon relocation to
Defendant's Carlisle terminal and installed as Manager of Heavy Haul.
57.
Upon information and belief, Mr. Smith was relocated to Defendant's Carlisle terminal and
installed as its Manager of Heavy Haul in approximately January 2010.
58.
Upon information and belief, Mr. Smith was as a member of Defendant's management
team.
59.
Remaining portions of Plaintiff's duties as Director of Pricing were reassigned to Jason
Stambaugh.
60.
Mr. Stambaugh possessed significantly less seniority and experience as compared to
Plaintiff.
61.
Historically, Mr. Stambaugh worked as Defendant's Manager of Brokering and his duties
were expanded to include government freight for brokering.
62.
Mr. Stambaugh possessed no prior experience in this area and it was Plaintiff who trained
Mr. Stambaugh to perform said duties, assist him in this regard, processed all paperwork for
clearance, acid handled all aspects of certification with respect to hauling freight for government
entities.
63.
Plaintiff was perfectly capable of performing the duties performed by Mr. Stambaugh and
those he assumed from Plaintiff following her termination from employment.
64.
Defendant treated individuals outside Plaintiff s protected class more favorably than
Plaintiff, including but not limited to Mr. Stambaugh .
65.
By way of further illustration, in connection with its RIF, Defendant eliminated the position
held by Gary Schazberger who was then terminal manager.
66.
Rather than terminate Mr. Schazberger's employment, Defendant created a new position for
him to serve as its Recruiter.
67.
Upon information and belief, this position previously did not exist within Defendant's
organization at its Carlisle terminal.
68.
Mr. Schazberger was permitted to remain in this "fictional" position as Recruiter until the
retirement of Harry Lichtenberger (Customer Service Manager).
69.
Upon Mr. Lichtenberger's retirement, Mr. Schazberger was installed as Customer Service
Manager to replace Mr. Lichtenberger and Mr. Schazberger's as Recruiter was never filled.
70.
In essence, Defendant created an imaginary position for Mr. Schazberger so that he could
remain employed with Defendant despite its alleged RIF purportedly required as a result of cost
cutting measures.
71.
The unlawful gender harassment/discrimination, asmore fully described above, was
offensive to Plaintiff and would have been offensive to a reasonable person similarly situated.
72.
As a direct and proximate cause of said gender harassment/discrimination and disparate
treatment, Plaintiff has suffered a loss of earning and benefits, and harm to her earning capacity, and
claim is made therefor.
73.
As a direct and proximate cause of said gender harassment/discrimination and disparate
treatment, Plaintiff endured emotional pain and suffering and will endure additional pain and
suffering in the future, and claim is made therefor.
74.
As a direct and proximate cause of said gender harassment/discrimination and disparate
treatment, Plaintiff has suffered a loss of life's pleasures and harm to her self-esteem and claim is
made therefor.
75.
As a direct and proximate cause of said gender harassment/discrimination and disparate
treatment, Plaintiff has suffered great humiliation and embarrassment and claim is made therefor.
76.
As a direct and proximate cause of said gender harassment/discrimination and disparate
treatment, Plaintiff is entitled to back pay and lost fringe benefits, together with interest thereon, and
claim is made therefor.
77.
As a direct and proximate cause of said gender harassment/discrimination and disparate
treatment, Plaintiff is entitled to be reinstated to her position or to front pay and benefits, and claim
is made therefor.
78.
As a result of Defendant's violation of the PHRA, Plaintiff is entitled to recover her attorney
fees and costs, and claim is made therefor.
79.
The termination of Plaintiffs employment effective on or about December 4, ?009 resulted
in adverse employment action.
80.
The amount in controversy exceeds any jurisdictional amount requiring compulsory
arbitration.
WHEREFORE, Plaintiff demands judgment in her favor and against Defendant in an
amount to be proven at trial and in excess of any jurisdictional amount requiring compulsory
arbitration, said damages to include, without limitation:
Compensatory damages;
2. :For back pay and benefits;
For front pay and benefits should reinstatement prove unfeasible;
4. For statutory pre judgment interest;
5. For reasonable costs and attorney fees; and
6. For any other relief that this Court deems just and equitable.
Respectfully submitted,
CLARK & KREVSKY, LLC
~~;
By. ~
Solomon Z. evsky, Esquire
Supeme Court ID # 72719
20 Erford Road, Ste. 300A
Lemoyne, PA 17043
(717) 731-8600
(717) 731-4764 fax
email: szk@clark-krevskylaw.com
Attorney for Plaintiff
LISA M. WHITLEY, IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
DAILY EXPRESS, INC.,
Defendant
No.
Civil Action -Law
Jury Trial Demanded
VERIFICATION
I, Lisa M. Whitley, the Plaintiff in the foregoing action do hereby affirm that the statements
made in the foregoing are true and correct to the best of my knowledge, information and belief. I
understand that this Verification is made subject to the penalities of I8 Pa. C.S.A. X4904, relating to
unsworn falsification to authorities.
Date
/~
Lisa M. Whitley, Plaintiff
LISA M. WHITLEY, IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY,
PENNSYLVANIA
V.
No. 13-669 = `-
DAILY EXPRESS,INC., Civil Action—Law r
�r�rn 330
Defendant '
Jury Trial Demanded `{'� o
PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER "
AND NOW,comes Plaintiff,Lisa M. Whitley,by and through her attorney Solomon Z.
Krevsky,Esquire,and Clark&Krevsky,LLC and files the instant response to Defendant's New
Matter(noted in Defendant's Answer to Complaint as"Defenses")and in support hereof avers as
follows:
1. Paragraph 1 of Defendant's New Matter is a conclusion of law to which no
responsive pleading is required.
2. Paragraph 2 of Defendant's New Matter is a conclusion of law to which no
responsive pleading is required.
3. Paragraph 3 of Defendant's New Matter is a conclusion of law to which no
responsive pleading is required.
4. Paragraph 4 of Defendant's New Matter is a conclusion of law to which no
responsive pleading is required. To the extent that a responsive pleading is required,the averments
of Paragraph 4 of Defendant's New Matter are denied. It is specifically denied that Plaintiff never
once reported any alleged discrimination or harassment to Defendant.
5. Paragraph 5 of Defendant's New Matter is a conclusion of law to which no
responsive pleading is required.
6. Paragraph 6 of Defendant's New Matter is a conclusion of law to which no
responsive pleading is required. To the extent that a responsive pleading is required,the averments
of Paragraph 6 of Defendant's New Matter are denied. It is specifically denied that Plaintiff failed
to mitigate her damages.
7. Paragraph 7 of Defendant's New Matter is a conclusion of law to which no
responsive pleading is required. To the extent that a responsive pleading is required,the averments
I
of Paragraph 7 are denied.
8. Paragraph 8 of Defendant's New Matter is a conclusion of law to which no
responsive pleading is required.
9. Paragraph 9 of Defendant's New Matter is a conclusion of law to which no
responsive pleading is required.
WHEREFORE,Plaintiff respectfixlly requests this Honorable Court to enter judgment in her
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favor and against Defendants in an amount to be proven at trial and for such other relief as this
Court deems just and equitable.
Respectfully submitted,
CLARK&K REVSK LLC
By _
S omon Krevsky,Esquire
A omey for laintiff
Supreme ourt ID#72719
20 Erford Road, Suite 300A
Lemoyne,PA 17043
(717)731-8600
(717)7314764 fax
e-mail: szk&clack-krevskylaw.com
CERTIFICATE OF SERVICE
AND NOW,TO WIT,this 19th day of March,2013,1, Solomon Z. Krevsky,Esquire,
hereby certify that I have this date served a copy of the foregoing by depositing a copy of same in
the United States Mail,postage prepaid at Lemoyne,Pennsylvania,addressed to counsel of record
as follows:
Shawn D. Henry,Esquire
McNees Wallace&Nurick LLC
100 Pine Street
P. O.Box 1166
Harrisburg,PA 17108-1166
Respectfully submitted,
CLARK&KREVSK L
By:
Sol mon Krevsky,Esquire
Att Mey for laintiff
pu
S 0 rem m e-C . D.#72719
20 Erford Road, Suite 300A
Lemoyne,PA 17043
(717) 731-8600
(717)731-4764 fax
e-mail: s&@
,clark-krevgkylaw.com