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Robert Gena v. Pepsi-Cola General Bottlers

September 14, 2011


The opinion of the court was delivered by: Judge James B. Zagel


Plaintiff claims that Defendant Pepsi-Cola General Bottlers, Inc. ("Pepsi or PCGB") violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title VII") by retaliating against him for speaking out against the discrimination of a co-worker and for filing administrative charges. Specifically, he claims Pepsi retaliated against him by (1) adding a new classification for painters in the collective bargaining agreement, (2) eliminating his position of Machinist/Painter, and (3) terminating his employment. The parties have filed cross motions for summary judgment. For the following reasons, Plaintiff's partial motion for summary judgment is denied, and Defendant's motion for summary judgment is granted in part.


First, although I recognize that Plaintiff's Rule 56.1(b)(3)( C) statement was filed one day late and is untimely, I decline to strike his statement of facts.

Plaintiff asks that I strike facts regarding Plaintiff's medical leave of absence, as well as Pepsi's offering a general plant job to Plaintiff. Defendant did indeed represent in open court that Plaintiff's medical leave has nothing to do with the decisions in this case. Defendant's briefs likewise do not point to Plaintiff's medical leave as a basis for any adverse employment actions. I decline to strike Defendant's facts as to Plaintiff's medical leave, but consider them only for purposes of background information, providing further context to the events surrounding the alleged retaliation.

Next, Plaintiff contends that the offer of employment conveyed from Human Resources Manager Rene Gibson should be stricken as it constitutes a settlement offer in violation of Rule 408 of the Federal Rules of Evidence. Gibson's June 3, 2003 letter makes no mention of a settlement, no mention of a release, no mention of dismissal of claims, and attaches no conditions to Plaintiff's acceptance. Though Pepsi's attorney had previously conveyed a settlement offer to Plaintiff's attorney, that offer was legally separate from the employment offer made to Plaintiff by Gibson. Accordingly, I will consider Pepsi's offer of employment.


A. Relevant Protected Activity

Plaintiff is a former employee of Pepsi-Cola General Bottlers, Inc. On March 15, 2002, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") against PCGB, wherein Plaintiff alleged that his supervisor reduced his overtime and changed his shift in retaliation for his support of fellow co-worker Arvin Parker ("Parker"). On August 7, 2002, Plaintiff and Parker filed a Complaint against PCGB alleging that PCGB retaliated against Plaintiff for his support of Parker. He also testified in September of 2002 regarding another EEOC matter concerning another employee. On March 10, 2003, Plaintiff filed a second charge with the EEOC alleging that Pepsi continued to retaliate against him for protesting the treatment of Parker. On April 9, 2003, Plaintiff filed a Charge with the National Labor Relations Board alleging that he was "laid off in retaliation for his union and/or protected activity." On July 21, 2003 Plaintiff filed a third charge with the EEOC alleging that Pepsi eliminated his position and refused to hire him into a machinist position in continued retaliation for supporting Parker. On August 20, 2003, Plaintiff filed another complaint, the instant action, alleging retaliation and Title VII violations. On December 18, 2007, Plaintiff filed another charge of discrimination with the EEOC alleging retaliation. On October 5, 2009 Plaintiff filed a third Complaint again alleging retaliation.

B. Employment History

Plaintiff began his employment with PCGB as a general laborer in August of 1980. In October of 1980, Plaintiff joined the International Association of Machinists and Aerospace Workers, Local 126 ("Local 126" or "the Union"). He became classified as a Machinist pursuant to the collective bargaining agreement ("CBA") with PCGB. Pepsi's Machinists are members of a "skilled trade" that install, repair and perform maintenance on production line equipment. Although Plaintiff was classified as a machinist, he primarily worked as a painter. In his capacity as a Machinist, Plaintiff stated that he was "the only painter there for 22 years" and that he was "the main painter."

While Plaintiff was employed with Pepsi, the company employed outside contractors to perform certain painting functions. In 2000, Plaintiff filed grievances with the Union protesting that "outside contractors have performed duties that I have done in the past."

In June 2001, Joseph Yates ("Yates") moved from another Pepsi facility to become the Director of Operations/Plant Manager at the 51st Street Plant. Yates was responsible for all operational activity at the facility. Yates decided to classify a painter position because there was no painter position classified in the Union's Collective Bargaining Agreement ("CBA"). Yates also requested the introduction of two separate classifications (production and warehouse) for forklift drivers. In May of 2002 Pepsi and Local 126 began negotiating a new contract. On June 12, 2002, the final CBA was executed between Pepsi and Local 126 which covered the period of time between May 5, 2002 through May 5, 2007. The new ...

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