Lambert v. Macy's E., Inc.

• Decision Date: 30 April 2010
• Docket Number: No. 25547/05.,25547/05.
• Citation: 34 Misc.3d 1228,2010 N.Y. Slip Op. 52434,951 N.Y.S.2d 86
• Parties: Anthony LAMBERT, Plaintiff, v. MACY'S EAST, INC., Federated Department Stores, Inc., Maryanne Cadmus, and Cindy Coulson, Defendants.
• Court: New York Supreme Court

34 Misc.3d 1228

951 N.Y.S.2d 86

2010 N.Y. Slip Op. 52434

Anthony LAMBERT, Plaintiff,

v.MACY'S EAST, INC., Federated Department Stores, Inc., Maryanne Cadmus, and Cindy Coulson, Defendants.

No. 25547/05.

Supreme Court, Kings County, New York.

April 30, 2010.

Thompson Wigdor LLP, New York, for plaintiff.

Howrey LLP, Washington, DC, for defendant.

KAREN B. ROTHENBERG, J.

The following papers numbered 1 to 8 read on these motions:

+-----------------------------------------------------------------------------+
                ¦Papers                                                         ¦Numbered     ¦
                +---------------------------------------------------------------+-------------¦
                ¦Notice of Motion/Order to Show Cause/Petition/Cross Motion and ¦1–2 3–4  ¦
                ¦Affidavits (Affirmations) Annexed                              ¦             ¦
                +---------------------------------------------------------------+-------------¦
                ¦Opposing Affidavits (Affirmations)                             ¦6            ¦
                +---------------------------------------------------------------+-------------¦
                ¦Reply Affidavits (Affirmations) Affidavit (Affirmation) Other  ¦5, 7, 8      ¦
                ¦Papers Memoranda of Law                                        ¦             ¦
                +-----------------------------------------------------------------------------+
                

Upon the foregoing papers, defendants Macy's East, Inc. (Macy's), Federated Department Stores, Inc. (Federated),¹ Maryanne Cadmus (Cadmus), and Cindy Coulson (Coulson) move for an order, pursuant to CPLR 3212, granting summary judgment dismissal of the Complaint and all other claims against it in this employment discrimination action.

In a separate second motion, defendants also move for an order, pursuant to CPLR 2004 and 3212(a), granting an extension of time to serve a late motion summary judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff Anthony Lambert (Lambert) is an African American male who was twenty seven years old in 1999 when he began working at Macy's as an Operations Manager in the Security Division (an entry-level management position). Previously, he worked at Lord and Taylor, another major department store, where he was responsible for payroll and managing employees. Plaintiff alleges that during his employment at Macy's he was subjected to discriminatory policies and practices based on his race and/or color. According to Lambert, some of the Caucasian executives at Macy's told racial jokes and uttered racial slurs in Lambert's presence,² while others ignored and refused to interact with him, treated him hostilely, and/or spoke to him in a belittling and demeaning manner.

In or about March 2000, Lori Young (Young), a Caucasian woman, his direct supervisor, and one of the Directors of Operations, resigned from employment. Prior to being made Director of Operations, Young was Operations Manager for six months, in the same position that plaintiff held. Lambert had repeatedly asked Cadmus, another supervisor who was also Caucasian, whether he could apply for the Director of Operations position. Each time, Cadmus told him that the reason he could not be promoted to Director of Operations was because he had not received payroll training, which allegedly only she could provide for him. ³ Lambert avers that he was unaware of any other means of applying for the job. Nevertheless, he claims that, as Operations Manager, he still performed most of the Director of Operations duties, except for payroll functions.

In September 2000, Macy's hired Dominic Trocchia (Trocchia), a Caucasian male, as the new Director of Operations. Prior to being hired by Macy's, Trocchia had worked only in law enforcement and private security. Lambert avers that he spent considerable time training Trocchia to perform the Director of Operations duties. Cadmus also provided Trocchia with the requisite payroll training for the job. When Trocchia resigned approximately six months later due to difficulty making the transition from law enforcement to the retail industry, ⁴ Lambert again asked Cadmus if he could be promoted to Director of Operations, but was again told that he lacked the necessary payroll training. When he requested that she provide this training, she continually refused, allegedly without reason. Macy's then hired Coulson, a Caucasian female, to be the new Director of Operations. Lambert claims that he trained Coulson to perform the job as well.

Shortly thereafter, Cadmus approached Lambert with an offer to accept a job as a Civil Recovery Manager, which she explained was not a demotion, but rather a lateral transfer. Lambert told her he was not interested in the transfer. Subsequently, Brian Fuller (Fuller), a Caucasian male who was the Director of Security Administration, also asked Lambert to accept job as the Civil Recovery Manager as a “big favor” to him because Lambert was the only person who could succeed in that role, given his success as Operations Manager. When plaintiff told him he had no experience in Civil Recovery, Fuller assured him he would receive the training necessary to be successful. Lambert ultimately accepted the transfer as a favor to Fuller, based on Fuller's assurances, and after conferring with Cadmus, who told him that the job was approximately 90–95% finance-related.

However, Lambert avers that as soon as he started working as Civil Recovery Manager, Fuller asked Lambert to finish projects left incomplete by his predecessor, rather than providing him with necessary training. He asserts that even though he repeatedly asked Fuller and Coulson for training in Civil Recovery, they refused to do so.⁵ Lambert claims that the position was not finance-related at all, he had no training or experience for the position, and was forced to learn the job skills of Civil Recovery on his own.

While working as Civil Recovery Manager, Lambert reviewed statistics pertaining to individuals that Macy's detained for theft and/or shoplifting and noticed that over 90% of those individuals were non-Caucasian. Thomas Roan (Roan), the Vice President of Security at Macy's, explained that all the arrests were justified ( see Transcript of Thomas Roan, annexed as Exhibit E to plaintiff's opposition papers, at 213–216). Lambert alleges that he directed his complaints about such alleged racial discriminatory practices to Mitch Borger (Borger), the in-house counsel at Macy's, but Borger allegedly did nothing to address them.⁶

In March 2002, Fuller informed Lambert that he was forced to place him on “written caution,” despite never having received any criticism of his performance as Civil Recovery Manager. When plaintiff questioned the designation, Fuller allegedly thought it was unfair and did not think Lambert deserved it, but Cadmus had told him he had no choice. Cadmus had purportedly attempted to place Lambert directly on “written warning,” but the customary policy at Macy's is to first place an employee on caution before placing him or her on warning. According to the written caution document (annexed as Exhibit 10 to defendants' moving papers), which Lambert refused to sign, Lambert had problems understanding the scope and responsibility of his position and needed to improve his communication and prioritization skills.

When Fuller resigned from employment in June 2002, Coulson became Lambert's supervisor and placed him on “written warning” in early July, despite being his supervisor for only a couple weeks. When plaintiff asked why he was placed on warning, Coulson was allegedly unable to answer. According to Cadmus' deposition testimony, Lambert's performance as Operations Manager was mediocre.

On July 12, 2002, plaintiff filed a written complaint with Macy's Human Resources department against both Cadmus and Coulson, claiming that they had harassed him and created a hostile work environment (the July 2002 Complaint). The Human Resources representative who investigated Lambert's complaint, Jennifer Tejada (Tejada), informed him that the complaint was insufficient because it did not include examples, but did not tell him that he needed to include every instance of harassment and/or discrimination. Plaintiff amended his complaint to include the most recent example of harassment, but did not mention any racial jokes or slurs by his supervisors or co-workers. After interviews with Lambert and Cadmus, who plaintiff had identified as one of his harassers, Tejada determined that the complaint was unsupported.

Lambert was taken off warning status in January 2003, six months after he was given that designation.⁷ Nevertheless, in 2003 Lambert was given what he called a “discriminatorily harsh review” for his performance at work during the year 2002.⁸ He alleges that the review contained criticisms he had never received before and did not acknowledge any of his successes as Civil Recovery Manager. As a result of the adverse review, Lambert did not receive a raise from Macy's.

Lambert then requested to see his employment file and was shocked to see that his maximum salary as a Civil Recovery Manager was now listed at $50,000, rather than a maximum of $62,000 in his previous position as Operations Manager. Defendants, however, indicate that Lambert's master employment sheet (annexed as Exhibit 7 to defendants' moving papers) confirms that the two jobs were the same grade and that Lambert's potential maximum salary was in fact increased from $50,000 as an Operations Manager to $60,000 when he became a Civil Recovery Manager.In May 2003, Lambert met, for the first time, attorney, Ken Thompson (Thompson) at a press conference that Thompson was holding outside the Macy's Herald Square store for a client who had alleged federal racial discrimination claims against Macy's. Lambert alleges that Larry Sechuk (Sechuk) and Doug Howard (Howard), two high-level Macy's executives, asked him to “spy” on this press conference and that, after the press conference, they requested that he change data in the company's security systems relevant to...