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OSICKA v. SEARS

May 9, 1995

MARGIE L. OSICKA, Plaintiff,
v.
SEARS, ROEBUCK & CO., Defendant.



The opinion of the court was delivered by: RUBEN CASTILLO

 Plaintiff Margie Osicka (Osicka") sues defendant Sears, Roebuck & Co. ("Sears") alleging discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (count I), breach of contract (count II), and promissory estoppel (count III). Osicka's claims arise out of Sears' failure to rehire her after she took an extended personal leave of absence and was subsequently terminated. Sears' motion for summary judgment is presently before the Court. For the reasons set forth below, Sears' motion for summary judgment on count I is granted. The Court's disposition of Osicka's Title VII count eliminates Osicka's sole basis for federal question jurisdiction. Osicka's remaining counts seek to invoke the Court's pendent jurisdiction, see Compl. P 1; however, we decline to exercise jurisdiction over her remaining state-law claims.

 BACKGROUND

 The following undisputed facts are gleaned from the parties' respective Local General Rule 12 statements of material facts and accompanying exhibits. *fn1"

 At a mid-June meeting between LoMonaco, Bass and Osicka, shortly before she began her leave, Osicka reviewed Sears' Personal Leave of Absence Policy in the Sears employee manual, which provides for leaves of absence of up to 16 weeks (which may be extended by the Regional Human Resource Manager), where good cause is shown and the employee can be spared from his or her duties, and where the employee intends to return to work at Sears. The statement of policy contains the following express disclaimer: "A personal leave of absence is not a guarantee of re-employment. If no job is available when associates wish to return, their employment will be terminated." Pl.'s Facts P 26. During this meeting, Osicka signed a document prepared and counter-signed by Bass that further outlined the terms of her leave of absence as follows:

 
1. We will extend your Leave of Absence for up to one year, maximum.
 
2. There is no guarantee of an assignment upon your return, however, every effort will be made to place you in an assignment. If there is no Buyer 1 position available you will be placed in an Assistant Buyer assignment at an annual rate of $ 70,000, if such an opening is available.
 
3. You will be responsible for payments to continue coverage of medical and group life insurance.

 Pl.'s Facts, P 29. She also signed a document reproduced directly from the Sears Employee Manual entitled "Statement for Personal Leave of Absence" which provides, "I fully understand that my reinstatement following this leave of absence will depend upon the availability of a position for which I am qualified." Id.

 Osicka was unsatisfied with the language providing that there would be no guarantee of employment upon her return, but was told that the language could not be removed, as it was required by company policy and a leave could not be granted without such language. Osicka Dep. at 59-64; Plaintiff's Facts PP 33, 34. LoMonaco had indicated to Osicka, that "given enough time he was sure that something would be found." Osicka Dep. at 61. "Enough time" meant "some months, a few month's time." Id. Osicka admits, however, that neither Bass nor LoMonaco promised her a job on her return. Pl.'s Facts P 35. It is also undisputed that Osicka understood at the time that she signed the leave of absence documents that there was no guarantee of an assignment upon her return. Pl.'s Facts P 40.

 Osicka continued to work at Sears from June 19, 1990, until she began her leave on August 1, 1990. In January of 1991, Sears contacted Osicka to determine whether she wished to extend her leave of absence for an additional six months; additionally, at that same time, Osicka was informed that a position might be opening coming up in the near, near future," Osicka Dep. at 77, although further details were not provided. Id.; Pl.'s Facts P 52. At that time, Osicka extended her leave of absence until July 31, 1991. Osicka Dep. at 77. When asked if she would "have been interested in the position that was opening up in the near, near future," Osicka replied, "Probably not." Osicka Dep. at 77. Jim Smith was placed in an assistant buyer's position on March 16, 1991. This was a lateral move, and not a promotion for Smith, who was a highly regarded candidate. Bass Dep. at 27. The decision to place Smith in the position was made by Bass and LoMonaco. Pl.'s Facts P 62. It was Sears' understanding that Osicka was unavailable for the position at the time that it was open. Pl.'s Facts PP 54, 55. *fn2"

 During the early part of 1991, Sears was in the process of reorganizing and in March of 1991 massive layoffs occurred. During the term of her leave, Osicka was aware that Sears' reorganization had resulted in a reduction in the number of positions in the retail buying organization. Specifically, people were being laid off and jobs at the buyer and assistant buyer levels were being consolidated. Def.'s Facts PP 68-70.

 Osicka spoke with Bass on April 2, 1991 and met with him on April 30, 1991 regarding her return to work. During the April 30 conversation, she reported that she would be ready to return to work in early June after she returned from a trip to Europe. Pl.'s Facts P 73. Osicka told Bass that she would call him when she returned to the United States. Pl.'s Facts P 76. During that conversation, Bass informed Osicka that positions were scarce, that there was a major reorganization and that perhaps she should look elsewhere for employment. Pl.'s Facts P 77. When Osicka departed for Europe, she did not leave Bass a number at which she could be reached or make other arrangements for contact. Early in May, about the time Osicka departed for Europe, a buyer position became available. The position was filled by Mark Manock on May 16, 1991. Pl.'s Facts PP 80, 81. The position was a lateral move for Manock. ...


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