Whitney v. NBC Operating, LP
| Decision Date | 13 November 2015 |
| Docket Number | CIVIL ACTION NO. 14-40066-LTS |
| Parties | JEFFREY WHITNEY, Plaintiff, v. NBC OPERATING, LP, and ADRIENNE SANTOS, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#54)
Defendants filed a Motion for Summary Judgment (##54, 55, 56), Plaintiff opposed (##63, 64), and Defendants replied (##66, 67). For the reasons set forth below, I recommend that Defendants' Motion for Summary Judgment be ALLOWED on all counts.
The following facts are undisputed, except where indicated. Plaintiff Jeffrey Whitney lives in Worcester, Massachusetts. (##55, 64 at ¶ 1.) Defendant NBC Operating, LP1 is a corporation with offices in Framingham, Massachusetts, in the business of merchandising for TJ Maxx and Marshalls stores. (##55, 64 at ¶¶ 2, 3.) Defendant Adrienne Santos (who is female) worked for NBC as a planning manager during 2010-2013. (##55, 64 at ¶ 10; ##64, 66 at ¶ 85.)
In January 2010, Plaintiff was hired by NBC to be in a training program known as PASE. (##55, 64 at ¶ 9.) PASE is the first step on a well-defined career path; after finishing training, successful employees are promoted to the position of allocation analyst, then senior allocationanalyst, then associate planner. (##55, 64 at ¶¶ 5, 6.) The ultimate goal is that employees will be promoted into one of NBC's two divisions as Planner Managers or Associate Buyers. (##55, 64 at ¶¶ 4, 7, 8.) After completing the PASE training, Plaintiff received the first two promotions on this path, in June 2011 and January 2012. (##55, 64 at ¶ 38; ##64, 66 at ¶¶ 86-88.) Plaintiff received overall performance ratings of "meets expectations" at annual evaluations in 2010, 2011, and 2012. (##55, 64 at ¶¶ 26, 28, 30.) In 2011 and 2012, Plaintiff's evaluations, from manager Mia Decarolis, indicated that Plaintiff needed to visit stores more often and listed "clear development needs" in at least one subcategory. (##55, 64 at ¶¶ 29, 30.)
Defendant NBC had a policy against sexual harassment, including a grievance procedure, and Plaintiff was familiar with both. (##55, 64 at ¶¶ 11-13.) In early 2011, Plaintiff reported to the Associate Relations Department that his coworker Patricia Lituri had subjected him to sexual harassment. (##55, 64 at ¶ 40.) After his complaint, Lituri's conduct stopped. (##55, 64 at ¶ 41.) Defendant NBC also organized employee task forces to investigate retention rates of under-represented employee groups. (##64, 66 at ¶ 102.) Plaintiff was appointed to a task force focusing on retention rates of male employees; he participated on it from 2012 until he ended his employment at NBC. (##64, 66 at ¶¶ 102, 103.) Through the task force, Plaintiff understood that male retention rates at NBC were a problem, and that male employees were being "pushed out."2 (##64, 66 at ¶ 102.)
During the past 10 years, no other associate from the same department as Plaintiff or with an identical or similar job title has filed a lawsuit or agency charge of sexual discrimination or harassment against NBC or Santos. (##55, 64 at ¶¶ 14, 74.) Most of NBC's vice presidents aremen, including the one who oversaw Plaintiff's department. (##55, 64 at ¶ 15.) Santos has recommended promotion of other male employees. (##55, 64 at ¶ 77.)
In or around September 2012, Plaintiff received a lateral transfer to the women's sportswear department, one of the "biggest" and most "prestigious" departments in the company. (##55, 64 at ¶ 39; ##64, 66 at ¶ 89.) Between September 2012 and March 2013,3 Plaintiff claims the department supervisor, Adrienne Santos, harassed him by commenting that he "needed to be 'more of a cheerleader,'" that he was "not 'girly enough,'"4 that he should "leave his employment and go open a gym," that he needed to "chime in" and "be one of the girls" when "girl chat" was happening, and that he should be a "personal trainer." (##55, 64 at ¶ 43; ##64, 66 at ¶¶ 90, 92-95.) Santos recounted telling all her associates they "had to be a cheerleader of their business, meaning advocate for" their products. (#55 at ¶ 47.)5 Santos also admitted telling Plaintiff he should open a gym, because she knew he did personal training. (##55, 64 at ¶ 48.) Plaintiff further reported that Santos would "'baby' the female employees by being overly supportive of [their ideas and opinions] but would roll her eyes at the Plaintiff [when he talked about business] and would either ignore or respond to his statements in a negative [and unconstructive] manner." (##55, 64 at ¶ 43; #64 at ¶ 91.) Defendants deny these allegations. (#66 at ¶ 91.)
Plaintiff understood all these comments to be "based upon his sex/gender" and "suggesting that the Plaintiff, as a male, did not belong working in the fashion business" but rather "that the Plaintiff would be better suited to pursue a career that was male appropriate such as a personal trainer." (#32 at ¶¶ 5, 12.) Defendants deny that Santos intended these as comments on Plaintiff's sex or gender. (##64, 66 at ¶¶ 90-95.) Santos referred to NBC as a "woman's business." (#64 at ¶ 51.) Defendants characterize this remark as meaning the "women's sportswear division" was "the women's side of the business," which Plaintiff disputes. (#55 at ¶ 51.) Additionally, Santos excluded Plaintiff from meetings. (##55, 64 at ¶¶ 49, 50, 68; ##64, 66 at ¶ 130.) Plaintiff asserts that these were department meetings that he would ordinarily attend. (#64 at ¶¶ 49, 50, 130.) Defendants, however, say that Santos was holding individual meetings with other associates that did not concern Plaintiff.6 (#55 at ¶¶ 49, 50; #66 at ¶ 130.)
Plaintiff states that he visited Alana Ingham in the Associate Relations Department on numerous occasions beginning at the end of 2012 to complain about Santos' conduct. (#64 at ¶ 97.) He told her about "[t]he harassing remarks that I would get, the girly talk, the cheerleader comments, how I thought it was unprofessional that I would be... compared to girls or women... stuff like - small little harassment complaints." (#64, exhibit 43 at 280.) Defendants deny that Plaintiff complained before March 2013, or that Plaintiff told Ingham the conduct was gender-based. (#66 at ¶¶ 97-100.) The record does not indicate that Ingham responded to those complaints, but she told Plaintiff to talk to Santos himself. (##64, 66 at ¶¶ 98, 105, 106.) Plaintiff asserts that he did talk to Santos, to no avail; Defendants dispute this. (##64, 66 at ¶ 99.)
Despite Santos' behavior, by March 2013, Plaintiff believed he was performing well and was ripe for promotion. (##55, 64 at ¶ 34.) At that time, his direct manager was Abraham Landau, a man, and Santos was his department supervisor. (##55, 64 at ¶ 32.) Landau described Plaintiff's performance during this time as "on the low end of good" or "the lower side" of "meets expectations," and said he was not ready for a promotion. (#55 at ¶ 33.) Plaintiff disputes this; he remembers Landau telling him that he was performing well, and believed he was chosen to join a focus group because of his "strong leadership quality." (#64 at ¶ 33.) His sales were strong. (##64, 66 at ¶¶ 116, 117.)7
On March 18, 2013, Plaintiff was called to a meeting with Landau and Santos in which he anticipated he would receive a promotion. (##64, 66 at ¶ 118.) Instead, he received a "development plan," detailing improvements he needed to make in his job performance. (Id.) Plaintiff asserts that the development plan was solely Santos' decision. (#64 at ¶¶ 57-59.) Defendants dispute this, citing deposition testimony of both Landau and Santos explaining that they discussed Plaintiff's performance and collaborated in the decision to create the development plan. (#55 at ¶¶ 57-59.) Plaintiff remembers that in the meeting, Santos was "aggressive," "yelled" at Plaintiff and "made him feel worthless," reprimanded him for staying in the associate planner position for one year, and told him his road would be "incredibly rocky" and he had four months to "shape up or ship out." (#64 at ¶¶ 121-23.) Defendants deny the aggressive tone and all comments except "shape up or ship out." (#66 at ¶¶122, 123.) Plaintiff disagreed with the development plan because he believed his sales were high and he was visiting stores enough.(#64 at ¶ 120.) Defendants dispute this, noting that sales were not at issue in the development plan. (#66 at ¶ 120.) Afterwards, Plaintiff remembers that Landau apologized for Santos' demeanor and aggressive behavior. (#64 at ¶ 96.) Defendants deny that this happened, and Landau has no memory of it. (#66 at ¶ 96; #55, exhibit 28, at 66.)
Plaintiff believed that the development plan he received was a form of discipline. (#64 at ¶¶ 17-25, 60-63, 119.) Defendants reject this contention. (#55 at ¶¶ 17-25, 60-63; #66 at ¶ 119.) Defendants' written "Corrective Action Policy" ("CAP") does not explicitly list a development plan as a form of discipline, although Plaintiff believes it matches the CAP's definition of discipline. (##55, 64 at ¶¶ 16, 23-24; ##64, 66 at ¶ 119.) Managers were not required to partner with the Associate Relations Department when assigning development plans to employees, as they were with some other forms of discipline.8 (##55, 64 at ¶¶ 17, 23, 24.) Defendants assert that Plaintiff did not receive a "performance improvement plan" or any of the documents described in the CAP, although Plaintiff notes that his written development plan was included in his personnel file, as the CAP requires. (##55, 64 at ¶¶ 18, 44.) Defendants assert that development plans are "informal guidance documents" to help employees meet their goals, and that poor performance reviews are not a prerequisite. (#55 at ¶¶ 19-20; #66 at ¶120.)9 Santos had been issued a development plan at one point in her career, and she also assigned a development plan to a female employee, Christine Taranto, at a point when Ms. Taranto had a low...
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