U.S. Equal Employment Opportunity Commission v. Bob Evans Farms, Llc

REPLY BRIEF re Brief in Opposition to Motion for Partial Summary Judgment Regarding Liability and Affirmative Defense No. 8

W.D. Pa.January 23, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BOB EVANS FARMS, LLC, Defendant. ) ) ) ) ) ) ) ) ) ) Civil Action No. 2:15-cv-01237 Hon. Mark R. Hornak ________________________________________ ) PLAINTIFF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S REPLY BRIEF IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT But for Hayley Macioce’s pregnancy, she would not have been taken off of the automated schedule. Her pregnancy cannot be separated from the reason given for Defendant’s action – a perceived need to take an “imminent” maternity leave. Defendant has admitted, repeatedly, that its general manager took already scheduled shifts away from Macioce and removed her from the automated scheduling system because of this false, pregnancy-based assumption. Defendant’s admission, along with the testimony of the general manager, establish unequivocally that but for Macioce’s pregnancy, she would not have been subjected to Defendant’s adverse employment action. As a result, EEOC’s motion for partial summary judgment on liability must be granted. ARGUMENT The salient undisputed and material facts for purposes of liability in this case are the following: Macioce was pregnant in July and August 2014; her manager, Moreau, knew she was pregnant; Moreau removed Macioce from the automated scheduling system; Macioce was scheduled for fewer shifts (and had shifts taken away from her) as a result; and according to Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 1 of 12 2 Moreau, his sole reason for taking that action against Macioce was because of his unfounded belief that Macioce would “imminently” take a pregnancy leave of absence. Defendant does not genuinely dispute these facts. Rather, it disputes the significance of those facts using an incorrect standard of law. As EEOC set forth in its moving papers, the appropriate legal standard to apply to the evidence in this case is the direct evidence standard. See ECF No. 59 at p. 5. Rather than apply this legal standard, Defendant argues that the burden- shifting paradigm under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies, and contends that Moreau’s reason for removing Macioce from the schedule – her “imminent” leave – was a legitimate, non-discriminatory reason for his actions and EEOC cannot establish pretext. See ECF No. 69 at p. 8-10. However, in this case there is no need for circumstantial evidence of pregnancy-based motivation and, therefore, the McDonnell Douglas/Burdine/Hicks analysis is inapplicable. An adverse action based on an employer’s false assumption that a pregnant employee desires imminent maternity leave is direct evidence of pregnancy discrimination. But- for Macioce’s pregnancy, she would not have been subjected to removal from the work schedule. Her removal from the schedule was, essentially, a form of mandatory maternity leave. Under controlling law, Defendant’s adverse action against Macioce is evaluated by applying the “simple test of whether the evidence shows treatment of a person in a manner which but for that person’s [pregnancy] would be different.” City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) (discussing Title VII causation standard in sex discrimination cases). In this instance, Defendant’s pregnancy-based motivation is inherent in its purported explanation for the adverse action. General Manager Jay Moreau admittedly knew that Macioce was pregnant. Based on her pregnancy status, he stereotypically assumed that she would need to take an imminent leave, not for any general reason unrelated to her protected Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 2 of 12 3 traits, but specifically because she was pregnant. Thus, but for her pregnancy, Defendant would not have removed Macioce from the restaurant work schedule.1 This conclusion is confirmed by examining the breadth of Title VII’s protections regarding pregnancy. As amended by the Pregnancy Discrimination Act, Title VII expressly bars discrimination not only because of pregnancy, but also the intertwined reasons of “childbirth” and “related medical conditions.” 42 U.S.C. §2000e(k). “In using the broad phrase ‘women affected by pregnancy, childbirth and related medical conditions,’ the [PDA] makes clear that its protection extends to the whole range of matters concerning the childbearing process.” H.R. Rep. 95-948 (emphasis added). Moreau’s false (purported) assumption that Macioce would need imminent leave flows directly from known conditions associated with pregnancy, not anything that Macioce said or did. Macioce never said that she needed a leave, and was not absent from work or performing her work poorly. Defendant’s action was based solely on an assumption by Moreau that because Macioce was in the late stages of her pregnancy, she was going to need an imminent leave of absence for childbirth. The conclusion that pregnancy was a but for cause of the adverse action in this case is also supported by other compelling record evidence.2 1 EEOC need not prove “but for” causation in order to establish liability for pregnancy discrimination, as the minimum standard for liability is whether pregnancy was a motivating factor. E.g., 42 U.S.C. § 2000e-2(m) (setting forth motivating factor standard in Title VII cases). Nevertheless, Defendant’s admission that Moreau’s reason for removing Macioce from the schedule – his unsubstantiated belief that she was going to take an imminent maternity leave – is not only sufficient evidence to show that pregnancy was a motivating factor for his action, but was actually a “but for” factor. See Erie County Retirees Ass’n v. County of Erie, 220 F.3d 193, 212, n. 12 (3d Cir. 2000) (a “but for” causal relationship was established for liability under the ADEA because the employer’s use of Medicare eligibility was proxy for age). 2 Defendant’s claim that Moreau believed Macioce was taking leave imminently is also rebutted by the evidence that Moreau made a comment to Macioce that he was taking her off the schedule because he did not want to get “screwed over” if she went into labor, see ECF No. 58-2 (Nadalin Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 3 of 12 4 Well-established principles in Title VII case law also confirm that Defendant’s stated reason for removing Macioce from the restaurant work schedule is inherently pregnancy based. The federal courts have repeatedly held that employment decisions based on stereoptypes and false assumptions about work capabilities arising from an employer’s knowledge of a worker’s pregnancy status establish pregnancy causation. For instance, in Wagner v. Dillard Dept. Stores, Inc., 17 Fed. Appx. 141 (4th Cir. 2001), the plaintiff was denied hire as a sales clerk because the interviewer assumed that she would need to take time off after the birth of her child, even though the plaintiff intended to return to work immediately after the birth. Id. at 144-46. After a jury found for plaintiff, the defendant appealed, contending that the district court improperly gave a “mixed motive” instruction on causation. Id. at 148-49. Specifically, the defendant argued that the plaintiff failed to offer sufficient direct evidence to justify use of the mixed motive causation instruction, because the plaintiff’s testimony showed only that she was not hired because of her inability to work and her need to take leave shortly after being hired and it was permissible for the defendant to consider absences in making employment decisions, even if they are caused by pregnancy. Id. at 149. The Fourth Circuit rejected this argument, noting that the hiring manager declined to hire the plaintiff based on her assumption that the plaintiff would need leave because she was pregnant, and therefore her decision reflected “directly the alleged discriminatory attitude.” Id. at 150-51. At best, Dillard’s argument amounts to a post hoc fictitious assertion that it did not hire Wagner based upon the assumption that she could not or would not come Dep.) at 101:2-6, allowing a reasonable inference that Moreau knew that Macioce was not asking for imminent leave but he was instead mandating it to avoid any inconvenience to him from her pregnancy if she delivered her child earlier than the anticipated delivery date. Of course, Moreau’s statement also reflects pregnancy-based animus. While that evidence serves to further confirm pregnancy causation in this case, and certainly warrants denial of Defendant’s motion for summary judgment, it is not necessary for purposes of garnting EEOC’s motion in light of Defendant’s other admissions. Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 4 of 12 5 to work either because of her pregnancy or in the wake of her anticipated childbirth. Given Dillard’s stance at trial, of course, the evidence, when read in the light most favorable to Wagner, does not support such a stereotypical assumption on Dillard’s part. And, we are certainly unprepared to take judicial notice of the physical abilities or limitations of women who bear children, other than to note that they would surely vary widely from individual to individual. Also, Wagner’s testimony on this precise issue reflects an undisputed intent on her part to work up until delivery and to not take maternity leave. She expressed an intention to return to work immediately after delivering her baby. The jury, of course, could reasonably infer from the evidence, viewed in the light most favorable to Wagner, that Dillard’s simply assumed that Wagner’s delivery would require her to take leave and miss work and, therefore, did not hire Wagner for this reason. Id. at 149-50. Other federal courts have also routinely found pregnancy based motivation in cases where the employer’s adverse action was based on inaccurate assumptions about a pregnant employee’s availability or capability to work. See, e.g., Maldonado v. United States Bank, 186 F.3d 759, 766-68 (7th Cir. 1999) (reversing summary judgment where employer had discharged pregnant employee based on an assumption that she would not be able to cover shifts later during her pregnancy, observing that “an employer cannot take anticipatory action unless it has a good faith basis, supported by sufficiently strong evidence, that the normal inconveniences of an employee’s pregnancy will require special treatment.”); Troy v. Bay State Computer Group, 141 F.3d 378, 381 (1st Cir. 1998) (affirming verdict for discharged pregnant employee, noting “the company could not discharge her simply for being pregnant on the speculation that she would probably be rendered unable to fulfill the requirements of the job”); Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 434 (8th Cir. 1998) (affirming verdict in favor of pregnant employee, agreeing pregnancy was a motivating factor in employment decision where manager refused to allow pregnant employee to return to work based on assumption, without any real knowledge, that she had physical limitations that would have prevented her from performing her Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 5 of 12 6 duties). Similarly, Moreau’s claimed reason for his actions was an assumption that Macioce would be absent from work. Like in Deneen, Moreau’s assumption was based on no real knowledge, but hearsay from other employees. ECF No. 58-3 at 54:12-18. And like in Wagner, Defendant here contends that it was permissible for Moreau to take away Macioce’s shifts, and zero out her availability, because her attendance might be unpredictable. The result in Wagner, that employment actions based on assumptions and stereotypes about pregnant employees constitute direct evidence of discrimination, is required here.3 The fallacy of Defendant’s argument is illustrated by considering an analagous circumstance. Consider if, rather than relying on an unfounded assumption that a pregnant employee would require “imminent” leave, instead the employer admitted to medically disqualifying an employee from her position by relying on an erroneous assumption that a pregnant employee was restricted from lifting objects of a certain weight despite the fact that the 3 Consistent with the foregoing analysis, the federal courts have held in a variety of cases that what are claimed to be neutral factors for an employer’s actions are in reality proxies for discrimination. See Erie County Retirees Ass’n v. County of Erie, 220 F.3d 193, 211-212 (3d Cir. 2000) (employer’s use of Medicare eligibility to place employees in a separate, less desirable health insurance plan constituted age discrimination, as the use of Medicare eligibility was a proxy for age since eligibility for that benefit is tied directly to attaining age 65); see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 613 (1993) (holding that pension status was not a proxy for age discrimination in that particular case, but that an employer who correlates a neutral factor (such as pension status) with a protected category (such as age) may be liable for discrimination when it acts in accordance with that correlation); Tramp v. Associated Underwriters, 768 F.3d 793, 801-803 (8th Cir. 2014) (health care costs could be a proxy for age where employer supposed a correlation and acted accordingly); Hilde v. City of Eveleth, 777 F.3d 998, 1006 (8th Cir. 2015) (summary judgment reversed where defendant used retirement eligibility for age, believing that retirement eligibility was evidence of a lack of commitment to the job,” and therefore was a proxy for age discrimination); Anderson v. Gus Mayer Boston Store, 924 F. Supp. 763, 781 (E.D. Tex. 1996) (selecting health insurer that excludes employee with a disability, for the purpose of saving money on premiums, is discriminatory act under the ADA); El-Hakem v. BJY, Inc., 415 F.3d 1068, 1073-74 (9th Cir. 2005) (names can be a proxy for race, such as when a supervisor Anglicizes employee’s Arabic name, despite the employee’s objections, which is sufficient to establish discriminatory intent in Section 1981 claim). Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 6 of 12 7 employee had not requested a lifting restriction. In truth, she had no problems performing her duties, but was disqualified because of a manager’s stereotypical assumptions, or because other pregnant workers had had such restrictions. The manager would claim that he did not disqualify the employee because of her pregnancy but, instead, because he thought she could not perform her duties, and anyone who cannot perform those duties, pregnant or not, is disqualified from the job. Of course, the manager’s assertion is a fallacy. But for the employee’s pregnancy, the manager would not have wrongly assumed that the employee could not do her job. Thus, as discussed, pregnancy causation is embedded in the very explanation Defendant has provided. Defendant’s purported assumption that Macioce required imminent leave was a stereotype based on its knowledge of her late-term pregnancy status, not any leave request from Macioce herself. That fact ends the inquiry because under the PDA and Johnson Controls,4 as long as Macioce is capable of working it is left to her discretion, not her employer’s, to decide when to take herself off the schedule for reason of her pregnancy leave. In its briefing, Defendant attempts to evade this analytic problem by reframing the issue, claiming (but not demonstrating) that Moreau removes from the work schedule any employees who need an immediate leave regardless of the reason for the leave and, therefore, he treated Macioce like any other, non-pregnant employee.5 But even if one were to employ a comparative treatment analysis in this case, properly applied, such analysis inevitably leads to a finding of pregnancy causation. Defendant compares Macioce to other, unidentified co-workers in need of imminent leave who would not be available to perform their job duties. Of course, that 4 International Union, United Auto., Aerospace, and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991). 5 Moreau was unable to testify definitively whether he had take a similar action against a non- pregnant employee, but he did admit that he did the same thing to another pregnant employee, Brittany Spicuzza. See Supplemental Declaration of Deborah A. Kane at ¶2, Ex. AA (Moreau Dep.) at 71:25-72:17. Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 7 of 12 8 comparison is erroneous because it is based on a fiction. Macioce did not seek or require imminent leave and therefore is not similarly situated to employees with need for such leave. Under Title VII, pregnant employees must be treated the same as non-pregnant employees who are “similar in their ability or inability to work[,]” which is determined based on their actual ability to work, not their perceived inability flowing from stereotypical assumptions. See, e.g., International Union, United Auto., Aerospace, and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 204-06 (1991) (discussing legislative history and purpose of PDA to protect autonomy of pregnant workers to choose to continue work during their pregnancies and to require equal treatment of such workers based on the “actual effects of that condition on their ability to work”). Thus, the proper comparison is between persons similarly situated in their work capabilities, which in this case is between Macioce and her co-workers who also (1) did not ask for a leave of absence, (2) did not request to be taken off the work schedule, and (3) were also fully capable of doing their jobs. Applying that correct comparison, it is clear Macioce was subjected to less favorable treatment relative to her non- pregnant co-workers. She was removed from the schedule and they were not. See ECF No. 58-7 (Ex. F, ESI 2) and ECF 70-22 (Ex. U, ESI 4).6 Defendant, acting through Moreau, purportedly assumed that Macioce required imminent leave for her pregnancy and took her off the schedule. It did not assume than any of Macioce’s non-pregnant co-workers on the schedule required such leave. Only Macioce, and only because she was pregnant. Based on the undisputed evidence in this case, EEOC’s Motion should be granted. 6 Exhibit U, which was produced by Defendant during discovery as a “draft” schedule, shows that no other server was removed from the schedule to the extent Macioce was, or in a similar manner. Supp. Kane Dec. ¶3; ECF 70-22. Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 8 of 12 9 B. The Undisputed Evidence Shows That Defendant Cannot Meet Its Burden To Establish A Good Faith Defense To Punitive Damages. With respect to EEOC’s claim for punitive damages, Defendant again applies the incorrect standard of law. In its brief, Defendant contends that EEOC is not entitled to punitive damages because Moreau’s testimony that he understood that pregnancy discrimination was illegal does not show that he “believed that ‘he may be acting in violation’ of those laws.” ECF No. 69 at p. 11 (emphasis added in brief). That is not the standard, because that would require that Moreau had actual knowledge that he may be violating the law. The appropriate standard is whether Moreau acted “with malice or reckless indifference” to Macioce’s federally protected rights. Indeed, the Supreme Court set forth the appropriate standard – that an employer will be liable for punitive damages when it (through its managerial agents) acts in the face of a perceived risk that their actions will violate federal law – and drew a distinction between the reckless indifference standard and a knowledge standard. Kolstad v. American Dental Ass’n, 527 U.S. 526, 535-36 (1999). EEOC has already cited cases where knowledge of the particular federal law at issue, even in general terms, was enough to establish reckless indifference for the purpose of awarding punitive damages. See ECF No. 59 at pp. 8-9. These authorities, and the lack of any contrary authority, coupled with the undisputed evidence that Moreau knew that pregnancy discrimination was illegal, is enough to establish reckless indifference under Section 1981a. Furthermore, there is no dispute that it is Defendant’s burden to establish a good faith defense to punitive damages. See, e.g., Romano v. U-Haul Int’l, 233 F.3d 655, 670 (1st Cir. 2000) (“The defendant . . . is responsible for showing good faith efforts to comply with the requirements of Title VII”).7 Nor are the material facts related to the defense in genuine dispute: 7 See also cases cited by EEOC in its brief in support of its motion for partial summary judgment at ECF No. 59 at pp.10-11. Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 9 of 12 10 Defendant had some written policies prohibiting discrimination, none of which mention pregnancy, and only one of which mentions “gender;” Defendant provided no documentary evidence of training its managers with respect to pregnancy discrimination; Defendant provided no testimonial or documentary evidence that it implements any anti-discrimination policy with respect to pregnancy discrimination; and Moreau and Giaquinto both testified that they could not recall receiving any training related to pregnancy discrimination. No reasonable fact-finder could conclude based on these facts that Defendant actually implemented good faith efforts to comply with the law prohibiting pregnancy discrimination in employment. At best, the evidence proffered by Defendant shows that it may have instructed Moreau and Giaquinto not to engage in gender discrimination generally without defining it to include pregnancy and without any meaningful training specific to pregnancy. This is insufficient as a matter of law. In order to establish the good faith defense, an employer must show that it took steps designed to prevent the violation at issue – not just that it made efforts to generally comply with anti-discrimination laws. See Golson v. Green Tree Fin. Servicing Corp., 26 F. App’x 209 (4th Cir. 2002) (upholding punitive damages award and rejecting good faith defense, where employer had general anti-discrimination policies and vague references to a complaint procedure, the employee handbook did not mention pregnancy discrimination, and there was no evidence that the employer ever made its managers and supervisors aware that pregnancy discrimination is a form of gender discrimination); Reed v. Cracker Barrel Old Country Store, 171 F. Supp. 2d 741, 748-49 (M.D. Tenn. 2001) (“The good-faith compliance must relate to the specific claim being raised under Title VII,” holding that employer’s establishment of an affirmative defense to a sexual harassment claim did not establish a good faith defense to punitive damages which were awarded on the plaintiff’s retaliation claim, as the employer failed to adduce any evidence of its Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 10 of 12 11 efforts to prevent retaliation). Here, Defendant made no effort to make its restaurant-level managers aware of pregnancy discrimination and failed to train them about such discrimination and how to avoid it. For instance, Assistant General Manager Virginia Giaquinto utterly failed to respond to strong evidence of possible pregnancy discrimination. While acknowledging Macioce’s pregnancy, and the fact that Macioce was “not pleased” that her shifts had been taken away, Giaquinto never went to Moreau to ask why he had taken Macioce, one of their best servers, off the schedule. ECF No. 70-8 (Giaquinto Dep.) at 26:10-13. Had Giaquinto been properly trained with respect to federal anti-discrimination laws, including how to spot the signs of possible discrimination, she may have taken steps to reverse Moreau’s actions, or at least bring it to the attention of upper management or human resources. Her failure to do so is evidence that Defendant failed to make good faith efforts to comply with Title VII’s prohibition of pregnancy discrimination. Therefore, EEOC’s motion for partial summary judgment regarding Defendant’s Affirmative Defense No. 8 should be granted. CONCLUSION For the foregoing reasons, EEOC’s motion for partial summary judgment regarding liability and Affirmative Defense No. 8 should be granted. Respectfully submitted, By: /s/ Deborah A. Kane Deborah A. Kane Senior Trial Attorney EEOC – Pittsburgh Area Office 1000 Liberty Avenue, Suite 1112 Pittsburgh, PA 15222 (412) 395-5866 (412) 395-5749 (facsimile) deborah.kane@eeoc.gov Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 11 of 12 12 Lisa H. Hernandez Senior Trial Attorney (412) 395-5852 lisa.hernandez@eeoc.gov Case 2:15-cv-01237-MRH Document 77 Filed 01/23/17 Page 12 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BOB EVANS FARMS, LLC, Defendant. ) ) ) ) ) ) ) ) ) ) Civil Action No. 2:15-cv-01237 Hon. Mark R. Hornak ______________________________________ ) SUPPLEMENTAL DECLARATION OF DEBORAH A. KANE IN SUPPORT OF EEOC’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING LIABILITY AND AFFIRMATIVE DEFENSE NO. 8 I, Deborah A. Kane, declare the following: 1. I am employed as a Senior Trial Attorney with the U.S. Equal Employment Opportunity Commission, Pittsburgh Area Office. I state the following facts based on my personal knowledge, in support of EEOC’s Motion for Partial Summary Judgment Regarding Liability and Affirmative Defense No. 8. 2. Attached as Exhibit AA is a true and correct copy of excerpts from the transcript of the deposition of Jeremy Moreau. 3. Attached as Exhibit U to my declaration submitted in support of EEOC’s opposition to Defendant’s Motion for Summary Judgment (and found at ECF No. 70-22) is a true and correct copy of a .pdf version of an Excel spreadsheet produced by Defendant during discovery, and which Defendant identified as a schedule reflecting modifications for servers scheduled between January 1, 2014, and September 30, 2014, at ESI 4. See also ECF No. 58-6 (Ex. E, Defendant’s Responses to EEOC’s First Set of Requests for Production of Documents) at Response No. 7. I have reviewed Exhibit U, specifically looking for “deleted” shifts, which are Case 2:15-cv-01237-MRH Document 77-1 Filed 01/23/17 Page 1 of 2 2 reflected in the column labeled “FinalSchedLastName.” While other servers had shifts deleted by Jay Moreau, none had as many shifts deleted as Hayley Macioce, and none had a similar pattern or deletions in a short period of time as Macioce did. I declare under penalty of perjury that the foregoing is true and correct. Date: 1/23/2017 ____________________________________________________________________________________________________________________________________________________________________________________________________________ Deborah A. Kane Case 2:15-cv-01237-MRH Document 77-1 Filed 01/23/17 Page 2 of 2 EXHIBIT AA Case 2:15-cv-01237-MRH Document 77-2 Filed 01/23/17 Page 1 of 6 Jeremy J. Moreau - - - - - www.bauerreporting.com Bauer Court Reporting, Inc. 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA EQUAL EMPLOYMENT ) OPPORTUNITY COMMISSION, ) ) Plaintiff, ) ) CIVIL ACTION NO. vs. ) 2:15-cv-01237 ) BOB EVANS FARMS, LLC, ) ) Defendant. ) DEPOSITION OF JEREMY J. MOREAU, taken pursuant to the Federal Rules of Civil Procedure, before Dawn L. Kephart, Court Reporter-Notary Public in and for the Commonwealth of Pennsylvania, on Thursday, June 16, 2016, at the offices of the Equal Employment Opportunity Commission, William S. Moorhead Federal Building, 1000 Liberty Avenue, Suite 1112, Pittsburgh, Pennsylvania 15222, commencing at 9:32 a.m. Case 2:15-cv-01237-MRH Document 77-2 Filed 01/23/17 Page 2 of 6 Jeremy J. Moreau - - - - - www.bauerreporting.com Bauer Court Reporting, Inc. 47 1 with this system for a few years now as to why this 2 system was being utilized? 3 A. I would be speculating. 4 Q. Okay. You had mentioned that employees can 5 go onto the system to request time off, right? 6 A. Yes. 7 Q. And can they also go onto the system to 8 request sort of a permanent change in their 9 availability? 10 A. Yes. 11 Q. And as a general manager, have you had 12 occasion to have employees do that? 13 A. Yes. 14 Q. Is there anything that an employee needs to 15 do beforehand with you? For instance, does an 16 employee need to come to you to discuss a change in 17 availability before going onto the system and making 18 that request? 19 A. They do not. 20 Q. And has that been the case since this 21 automated scheduling system has been put in place? 22 A. Yes, ma'am. 23 Q. When you started working at the 24 West Mifflin location, Store 80, sometime in 2013, 25 was Hayley Macioce already working there? Case 2:15-cv-01237-MRH Document 77-2 Filed 01/23/17 Page 3 of 6 Jeremy J. Moreau - - - - - www.bauerreporting.com Bauer Court Reporting, Inc. 48 1 A. She was. 2 Q. And she was a server, correct? 3 A. Correct. 4 Q. What did you think of her as an employee? 5 A. Are you asking for my opinion? 6 Q. Yes. 7 A. I thought she was a very skilled server. 8 Somebody that I could rely on. 9 Q. As you know, the reason why we're here is 10 because Ms. Macioce claims that you removed her from 11 the automated schedule because she was pregnant. 12 A. Correct, I understand that. 13 Q. Okay. What I'd like to do is talk a little 14 bit about your interactions with her during 2014 when 15 she was pregnant. Okay? 16 A. Okay. 17 Q. When did you first learn that she was 18 pregnant? 19 A. I don't recall the date. 20 Q. Do you recall the season? Was it 21 winter, -- 22 A. It was summer. 23 MR. VAUGHN: Wait until she's done. 24 Q. -- spring, summer, fall? 25 A. I'm sorry. It was summer. Case 2:15-cv-01237-MRH Document 77-2 Filed 01/23/17 Page 4 of 6 Jeremy J. Moreau - - - - - www.bauerreporting.com Bauer Court Reporting, Inc. 71 1 restaurant? 2 A. My recollection would be we would've been 3 fully staffed, so around 30 to 35 servers is how many 4 I like to carry. 5 Q. Okay. So it's your recollection back in 6 July and August of 2014, that you were fully staffed 7 with servers at that time? 8 A. I believe so. I apologize for not 9 remembering everything. 10 Q. All we can do is ask for your best 11 recollection, Mr. Moreau. 12 I would imagine that from time to time 13 people get sick without planning ahead, correct? 14 A. Correct. 15 Q. So people call off, right? 16 A. Correct. 17 Q. People get into car accidents, correct? 18 A. Yes. 19 Q. Or the bus doesn't show up and they can't 20 get to their shift, right? 21 A. Right. 22 Q. So from time to time, you have to scramble 23 and fill a shift; is that right? 24 A. That's right. 25 Q. Do you recall, other than Ms. Macioce, the Case 2:15-cv-01237-MRH Document 77-2 Filed 01/23/17 Page 5 of 6 Jeremy J. Moreau - - - - - www.bauerreporting.com Bauer Court Reporting, Inc. 72 1 names of any other employees who you changed their 2 availability to zero? 3 A. I -- I don't know if I can tell you 4 definitely, so I don't know that I should answer yes 5 to that, but I do believe that I have. 6 Q. Okay. Does the name Brittany Spicuzza ring 7 a bell? 8 A. Yes. And that was the one I was thinking 9 of that I wasn't sure if I had or not. 10 Q. Okay. And why was it with Ms. Spicuzza 11 that you changed her availability to zero in the 12 automated scheduling system? 13 A. She also told me that she was due and that 14 it was imminent. 15 Q. When you say "she was due," do you mean she 16 was pregnant? 17 A. She was pregnant. 18 Q. Other than Ms. Spicuzza and Ms. Macioce, 19 was there anyone else that you changed their 20 availability in the automated scheduling system to 21 zero because they were pregnant? 22 MR. VAUGHN: Object to the form of the 23 question. But go ahead and answer that, to the 24 extent you can. 25 A. I'm not sure. Case 2:15-cv-01237-MRH Document 77-2 Filed 01/23/17 Page 6 of 6