Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Incarnato v. Tops Freindly Markets

May 12, 2006


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff Judith Incarnato, ("Incarnato"), brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), (codified at 42 U.S.C. § 2000(e), et seq.) and the Age Discrimination in Employment Act of 1967, ("ADEA")(codified at 29 U.S.C. § 621 et. seq.); claiming that defendant Tops Friendly Markets, LLC, ("Tops"), discriminated against her on the basis of her age, and engaged in retaliatory conduct against her. Incarnato, who is 65 years of age, claims that she was harassed by a supervisor and terminated from her employment because of her age.

Defendant denies plaintiff's allegations and moves for summary judgment dismissing plaintiff's claims on grounds that plaintiff has failed to state a prima facie case of discrimination or retaliation, and that even if plaintiff has stated a prima facie case, she has failed to rebut the defendant's legitimate, non-discriminatory reason for terminating her employment. For the reasons set forth below, defendants' motion for summary judgment is granted, and plaintiff's complaint is dismissed.


Plaintiff Judith Incarnato began working for the defendant Tops Friendly Markets as a clerk in the General Merchandise section of store number 419, located in Fairport, New York. Plaintiff worked in that department as a part-time employee throughout her employment with Tops.

Sometime during the Spring of 2003, in either April, May, or June, plaintiff contends that she was verbally berated in front of customers and fellow employees by the Manager of the General Merchandise Department, Andrew Zollweg ("Zollweg"). Though plaintiff recalls the incident, and recalls reporting the incident to a union representative, she does not recall what events led to the incident nor what Zollweg allegedly said to her during the incident. See Deposition Transcript of Judith Incarnato at p. 102.

In August 2003, plaintiff contends that Zollweg harmed her by failing to properly handle a vacation request. Plaintiff alleges that she requested vacation time, and requested that she be paid on a certain date for her vacation days. She states that although Zollweg approved that vacation time and pay date, she did not receive her pay the date expected because Zollweg failed to properly process the payment. Zollweg contends that he lost plaintiff's paper work and submitted the vacation request with the incorrect pay date. He claims that despite incorrectly filing the paperwork, plaintiff appeared at the store on the pay date she had originally requested and received a portion of her pay, which was paid directly out of petty cash.

In February, 2004, plaintiff requested vacation time for a period covering the week of February 22, through February 28, 2004. Because Zollweg was out on medical leave, the request was made to Teresa Kimber, the store's Grocery Manager who was supervising the General Merchandise section while Zollweg was on leave. Kimber, however, did not approve the request on grounds that she herself would soon be on vacation, and therefore, she was not the supervisor who would be writing the work schedule for the week of February 22. Thereafter, Incarnato submitted her vacation request to Debbie Brewer, an Assistant Customer Service Manager who was acting as store 419's payroll clerk. According to the defendant, Brewer did not have the authority to grant or deny plaintiff's request, as only the Department Head Manager had the authority to grant or deny vacation requests. In addition to requesting time off, plaintiff, on the back of the vacation request form, indicated that she would no longer be available to work 16 hours per week, and instead, would be available to work only 8 hours per week, from 8 to 12 on Tuesdays and Wednesdays.

On or about February 20, 2004, Zollweg, who was still on medical leave, returned to store 419 to prepare the work schedule for the week of February 22, 2004. According to the defendant, although Zollweg was not aware of plaintiff's request for time off, he did learn that she had requested to work only on Tuesdays and Wednesdays, and accordingly, he scheduled her to work on Tuesday, February 24, and Wednesday, February 25, 2004. Zollweg contends that because he had not been in the office, he did not know whether or not plaintiff had discussed her requested change in hours with another manager.

According to the plaintiff, she did not report to work on February 24 or 25 because she had not been notified that her vacation request had not been approved. Because plaintiff had failed to report to work for two consecutive days, Cheryl Emerling, the Manager of store 419, terminated Incarnato's employment pursuant to the company's excessive absenteeism policy. Under the terms of that policy, any employee who, without an excused absence, failed to appear for work on two consecutive work dates was deemed to have voluntarily quit. See Exhibit A to the January 27, 2006 Affidavit of Cheryl Emerling.

Plaintiff learned of the termination of her employment on February 26, 2004, when she arrived at the store for non-work related reasons. While still at the store, Incarnato discussed the situation with Emerling, and explained that she believed that her vacation had been approved. Emerling reviewed Incarnato's paperwork, and when it was discovered that plaintiff's vacation had not been approved, and that plaintiff had requested a change in hours, Emerling offered to reinstate Incarnato's employment to a position that could accommodate plaintiff's requested change. Emerling explained that the general merchandise department could not accommodate plaintiff's requested hours, and therefore, if Incarnato wanted to continue working at Tops, she would have to work as a cashier, and would be required to be available for work 16 hours per week. Incarnato refused Emerling's offer on grounds that she "did not know how to make change" and did not want the increased stress and responsibility of a cashier position.

Incarnato, through her local union, pursued a grievance relating to her termination from employment. On March 2, 2004, Incarnato, along with her Union representative Anthony Cuchiarale, ("Cuchiarale") met with Emerling to discuss the matter. Cuchiarale incorrectly alleged that Tops' policy required three consecutive unreported absences from work prior to being fired for excessive absenteeism, and claimed that Incarnato's employment had been wrongfully terminated. In fact, Tops' policy allowed an employee to be fired after two consecutive unexcused absences. Believing that she may have incorrectly interpreted Tops' policy, Emerling offered to reinstate Incarnato to her position in the general merchandise department, provided she agreed to be available for work at least 16 hours per week. Incarnato refused this offer on grounds that she wanted to work only eight hours per week. Indeed, Incarnato refused this offer on at least three separate occasions during the grievance process. Unbeknownst to Tops, Incarnato did not want to commit to work more than 8 hours per week because she had taken a part-time position at the Finger Lakes Racetrack. Nevertheless, Incarnato wanted to keep her employment with Tops, albeit for only 8 hours per week, so she could retain her Tops' employee benefits.

Plaintiff filed a written charge of age discrimination with the Equal Employment Opportunity Commission on or about July 13, 2004. On September 22, 2004, after conducting an investigation into plaintiff's claims and finding no evidence of discrimination, the EEOC issued plaintiff a Notice of Determination and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.