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Frankel v. The TJX Co., Inc.

United States District Court, D. Connecticut

July 10, 2017



          Vanessa L. Bryant, United States District Judge

         Plaintiff Jeffrey Frankel ("Plaintiff" or "Frankel") brings this action for damages and eguitable relief against Defendant The TJX Companies, Inc. ("Defendant" or "T.J. Maxx") alleging employment discrimination and unlawful retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d) and the Connecticut Fair Employment Practices Act ("CFEPA"), Connecticut General Statute § 46a-60. [Dkt. 14.] Currently before the Court is Defendant's Motion for Summary Judgment as to all claims. [Dkt. 27.] For the reasons set forth below, Defendant's Motion is GRANTED as to all claims.

         I. Background

         Plaintiff has been working in the retail industry since 1968. [Dkt. 28-1 (Frankel Dep.) at 10.] He worked as an assistant store manager, department manager, operations manager, and store manager at Bradley's Discount store from 1968 to 1993. Id. Plaintiff voluntarily resigned from Bradley's to accept an offer of employment at Caldor's Department Store. Id. Plaintiff worked as an assistant manager at Caldor's until 1999, when the store closed. Id.

         T.J. Maxx hired Plaintiff in April 1999, when Plaintiff was 49 years old. Frankel Dep. at 40; 168. Plaintiff remained continuously employed by T.J. Maxx until his termination in January 2014. Id. at 40; 168. Plaintiff was an assistant manager throughout his tenure with T.J. Maxx. Id. at 41.

         a. Plaintiff's Performance

         Plaintiff received annual performance reviews which included numerical scores in a number of categories including, for example, "customer service, " "acts with integrity, " and "leads with vision." [Dkt. 28-12 (Performance Evaluations).][1] Based on the total score, employees are given an overall rating of "outstanding, " "exceeds expectations, " "meets expectations, " "clear development needs, " or "unsatisfactory." Id. Plaintiffs annual evaluations were completed by his store manager, which changed periodically throughout his employment.

         In addition to tracking employees' performance through annual evaluations, Defendant has a Corrective Action Policy which provides that employees who do not meet job expectations may be disciplined through "sequential steps" including counseling, two "corrective action written warnings, " and termination. [Dkt. 28-7 (Corrective Action Policy) at 1.] However, in "more critical, serious situations, ... a written warning or immediate termination must be the first step in the correction process." Id. When determining whether to terminate an assistant store manager, the district manager gathers statements from relevant individuals and reviews any available data, and then asks someone in the associate relations or legal department to review the information as well. [[Dkt. 28-9 (Deposition of Human Resources Manager Lelia Ricard) ("Ricard Dep.") at 29.] The district manager makes final firing decisions. Id. at 30.

         In 2001, supervisor Angela Yearwood gave Plaintiff an overall rating of "meets expectations." Performance Evaluations at 2. The review indicates Plaintiff needed to better "articulate goals needing to be achieved, " not "allow obstacles to delay daily work efforts, " "reach established goals on a consistent basis, " and "consistently] follow up to ensure maximum productivity." Id. at 5. In 2003, supervisor Robert Indra also assigned Plaintiff an overall rating of "meets expectations." Id. at 8. The review indicates Plaintiff "tends to make decisions that are based solely on his own areas and not the whole store. He needs to grasp the 'team' concept and maintain a total store awareness." Id. at 17. In 2004, supervisor Natasha Jacobs gave Plaintiff an overall rating of "exceeds expectations." Id. at 19. The review states Plaintiff "can be trusted with company information, " and "contribute[s] greatly to the store's success." Id. at 20. However, notes also indicate Plaintiff "occasionally places his own interest ahead of company goals" and "needs to gain the trust of his peers." Id. In 2005, supervisor Laurie Zuchinsky also gave Plaintiff a "meets expectations" rating and indicated he should work to "hold [associates] accountable daily and provide feedback consistently." Id. at 24-25. No review was provided for 2006.

         From 2007 to 2012, store manager Andrew Weickowski completed Plaintiff's evaluations. Plaintiff's 2007 evaluation stated he "met expectations, " was "active in developing others" and "share[d] his retail experience to teach coordinators and associates." Id. at 28. In 2008, Mr. Weickowski gave Plaintiff the same overall score and stated Plaintiff "must continue to shift more responsibility to his direct report" and "needs to be more involved in the entire store operation not only limited to his own area." Id. at 30. In 2009, Mr. Weickowski raised Plaintiffs overall rating to "exceeds expectations" and stated he "provides tasks for coordinators but must make them more challenging" and "must spend more time with those who need help for further development." Id. at 33. In 2010, Mr. Weickowski decreased Plaintiff's overall rating to "meets expectations, " however feedback indicated Plaintiff "achieved" his "individual development plan" by training all subordinates to company policies. Id. at 38.

         In 2011, Mr. Weickowski gave Plaintiff the lowest score within the "meets expectations" range and stated Plaintiff "should be able to react properly to any issues happening at the store. Jeff received 2 formal counsels for not taking proper actions with associates-related issues and using LP equipment." Id. at 40-41. Each "formal counselling" Plaintiff received was memorialized by Mr. Weickowski. [Dkt. 28-13 at 2-3.] The first formal counselling memorandum referenced in Plaintiffs 2011 review, from September of that year, states Plaintiff needed to adhere to store protocol and relay "any incident of any nature" to the store manager "right away." Id. at 3. The second formal counselling memorandum, from October 2011, states Plaintiff entered the store's office, turned on the security cameras and watched activity on the sales floor without authorization. Id. The memorandum indicates Plaintiff violated store policies which required him to "be present at the front of the store and walking the sales floor to ensure customer service" and which prohibit store managers from "operating] and/or view[ing]... cameras without prior authorization." Id.

         In February 2012, Glen Schwarz replaced Mr. Weickowski as Plaintiff's store manager. [Dkt. 28-11 (Schwarz Dep.) at 35.] Mr. Schwarz was 42 years old in 2012 and Plaintiff, at age 62, was the store's oldest employee. [Dkt. 32-3 at 17; Dkt. 32-2 at 24.] In Plaintiff's 2012 annual review, Mr. Schwarz assigned Plaintiff an overall score two points higher than Mr. Weickowski awarded him in 2011, but still on the low end of the "meets expectations" range. [Dkt. 28-12 at 44.] Mr. Schwarz's notes indicate Plaintiff "needs to spend more time working with his coordinator and his associates assigned to him" and "needs to consistently train and follow up and hold accountable his associates." Id. at 44.

         Consistent with the 2012 review, Mr. Schwarz memorialized a formal counseling memorandum in May 2012 which stated Plaintiff "has been spoken to several times in the past month on Merchandise Presentation and signing of features.... This is Jeff's area of responsibility and is not being addressed with his associates." [Dkt. 28-14 at 2.] Three months later, in August 2012, Mr. Schwarz memorialized another formal counseling. Id. at 4. This memorandum stated Plaintiff failed to provide necessary support to the Loss Prevention department, which "put the safety of the Loss Prevention associate at risk and sen[t] a message to the Loss Prevention team that he doesn't care." Id.

         In February 2013, as part of Defendant's annual succession planning, [2] Mr. Schwarz compiled a talent summary grid based on "observations [he] made throughout the year in 2012." [Dkt. 32-3 at 7.] He categorized Plaintiff as "C potential, which [means he] cannot advance beyond current level." [Dkt. 32-6 at 7.]

         In June 2013, District Manager Ruthanne Sapienza gave Plaintiff a written warning for failing to appropriately address a customer concern. [Dkt. 28-17.] The warning stated a customer "had a problem with an associate at the Jewelry counter. Instead of going over and helping out, Jeff sent another associate to take care of the customer. This caused the customer and the first associate to continue to exchange words and the associate caused the customer to feel threatened." Id.

         In September 2013, Mr. Schwarz gave Plaintiff a mid-year review and again rated Plaintiff on the low end of the "meets expectations" range. [Dkt. 28-12 at 50.] Mr. Schwarz emphasized that the incident memorialized in Plaintiff's June 2013 written warning "resulted in the termination of an associate and put another associate in an uncomfortable situation." Id. at 50. Mr. Schwarz indicated Plaintiff "needs to work with the associates and management in building a positive relationship." Id. at 50. At a mid-year review meeting with Plaintiff, Mr. Schwarz informed Plaintiff he would not receive a bonus for that year or a salary increase. [Dkt. 32-2 at 23.] After Plaintiff's mid-year review, Ms. Sapienza directed Mr. Schwarz to begin keeping a log of Plaintiff's performance. [Dkt. 32-3 at 7.]

         In November 2013, Ms. Sapienza consulted with Lelia Ricard, the Manager of Human Resources, and decided to issue Plaintiff a second written warning regarding his general performance. [Dkt. 28-18; Dkt. 28-19.] The written warning did not detail a specific incident but stated "Jeff has not provided appropriate direction or support of the team. Jeff needs to set clear expectations for performance and deliver feedback. Jeff also does not plan, prioritize and delegate tasks effectively.... Jeff has become reactive instead of being proactive to daily responsibilities resulting in the building not running smoothly." [Dkt. 28-18.]

         In connection with the second written warning, Ms. Ricard suggested that Plaintiff be required to create an "action plan" and meet with another employee weekly to track Plaintiff's performance. [Dkt. 28-19.] Plaintiff's action plan, dated November 20, 2013, states Plaintiff would improve his performance by scheduling regular meetings and setting clear requirements for cashiers under his watch. [Dkt. 28-20.]

         On December 27, 2013, Ms. Sapienza issued Plaintiff another written warning, for leaving money in the cash register in the Jewelry department overnight. [Dkt. 28-21.] Plaintiff disputed whether he left money in the register, but Ms. Sapienza confirmed with another store associate that the money was left in the register on an evening when Plaintiff was the assistant manager on duty. [Dkt. 28-23 (email exchange between Ms. Sapienza and Ms. Ricard).] The written warning includes a note stating Plaintiff "closed the register and left the money inside. He thought someone else would pick up." [Dkt. 28-21.]

         b. The January 3, 2014 Incident and Plaintiff's Termination

         Defendant's building security policy states "a member of management may enter the building only when accompanied by another associate. Doors must be immediately re-locked before proceeding to the office to deactivate the alarm." [Dkt. 28-24 at 2.] Violations of the building security policy "are cause for corrective action up to and including termination of employment." Id. at 3. Plaintiff learned of the requirements of the building security policy "[m]aybe a couple weeks after [he] started." [28-1 at 61-62.]

         At 8:00 am on January 3, 2014, Plaintiff was the first member of management to arrive at Defendant's store. Frankel Dep. at 126-27. A cleaning crew was waiting at the front door and a store associate, Michael Martinez, was waiting in the parking lot. Id. Plaintiff unlocked the first door and the cleaning crew followed him into the entryway. Id. Plaintiff then unlocked the second door, relocked the second door for security, and ran to the office to turn off the store's security alarm and answer a phone call from a customer. Id. Plaintiff asserts he thought the cleaning crew followed him into the store instead of waiting in the entryway. Id.

         Sometime that morning, before 8:30 am, District Loss Prevention Manager Elizabeth Ocasio called the store and asked Plaintiff with whom he had opened the store. [Dkt. 28-28.] Jeff told Ms. Ocasio he opened the store with the cleaners. Id. When Mr. Schwarz arrived at the store at 8:30am, he asked Plaintiff, "who's here with you." [Dkt. 32-3 at 15.] He recalls Plaintiff responded that he "came in with Michael and the cleaners." Id.; Dkt. 28-27 (January 9 memorandum by Mr. Schwarz summarizing January 3 conversation) ("Jeff said he came into the building with Mike who was the only associate besides the cleaners.").

         The following day, Mr. Martinez complained to Mr. Schwarz that he had to wait outside in the cold with the cleaners until Plaintiff came outside the store and unlocked the door for them. [Dkt. 28-27.] Mr. Schwarz then informed Ms. Ocasio about Plaintiff and Mr. Martinez's conflicting accounts. Id. Ms. Ocasio reviewed video surveillance footage from January 3 and memorialized her impression: "Jeff is observed entering the store by himself at approximately 7:57 am. At approximately 7:59 am Michael is observed at the vestibule with the 2 floor cleaners. At approximately 8:02 am Jeff is observed walking to the front to let Michael and the 2 floor cleaners in." [Dkt. 28-26.] The parties have not provided the Court with a copy of the video recording.

         On January 9, Ms. Ocasio interviewed Plaintiff with Mr. Schwarz present as a witness. [Dkt. 28-28 (memorandum by Ms. Ocasio summarizing January 9 meeting).] She again asked Plaintiff with whom he opened the store on January 3, and Plaintiff replied he had opened the store with the cleaners. Id. Ms. Ocasio replied that the video surveillance footage showed him entering the building alone, and Plaintiff reiterated that "as far as he can recall, he opened with the cleaners, and that Michael came a few minutes after." Id. Ms. Ocasio asked Plaintiff if he knew Defendant's store opening procedures, and he said "a manager has to enter with someone else." Id.

         Ms. Ocasio and Associate Relations Manager Soledad McCabe also questioned Plaintiff's account because, while Plaintiff asserted he ran to the back office to answer the phone, there are "10 phones on his way to the assistant manager's office" (Ocasio Dep. at 29) which he could have answered (McCabe Dep. at 142). The video surveillance recording does not include sound and cannot ...

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