United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING SUMMARY
Vanessa L. Bryant, United States District Judge
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.
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.
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.
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).] 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.
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.
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.
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.
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
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.
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.
February 2013, as part of Defendant's annual succession
planning,  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.]
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
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.]
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.]
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.]
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.]
The January 3, 2014 Incident and Plaintiff'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
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.
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.").
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.
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."
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 ...