Drapala v. A.C. Moore
Filing
47
Judge Richard G. Stearns: ORDER entered granting 26 Motion for Summary Judgment. "For the foregoing reasons, defendant's motion for summary judgment is ALLOWED. The Clerk will enter judgment for defendant and close the case." (RGS, int2)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-10049-RGS
JOSEPH DRAPALA
v.
A.C. MOORE
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
February 12, 2016
STEARNS, D.J.
Defendant A.C. Moore terminated plaintiff Joseph Drapala as the
general manager of its Dedham, Massachusetts retail store in June of 2014.
Drapala was then sixty-six years old. He alleges that the termination was
motivated by age-based discrimination in violation of Mass. Gen. Laws ch.
151B, § 4.1
Discovery having been completed, A.C. Moore moves for
summary judgment.
Drapala voluntarily dismissed Count II of his Complaint under the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. See Dkt.
## 25, 29. Drapala also did not oppose A.C. Moore’s motion for summary
judgment on his claim of intentional infliction of emotional distress (Count
III). Jurisdiction remains in by this court by reason of diversity of
citizenship. 28 U.S.C. § 1332.
1
BACKGROUND2
A.C. Moore operates a chain of arts and crafts stores. In 1998, when
Drapala was 51 years old, A.C. Moore hired him as an assistant manager at
its store in Warwick, Rhode Island.
The following year, Drapala was
promoted to the position of general manager at A.C. Moore’s Bellingham,
Massachusetts store. He remained general manager of the Bellingham store
for 11 years. In February of 2010, Drapala transferred to the A.C. Moore store
in Dedham, Massachusetts, as its general manager.
As the general manager, Drapala was responsible for his store’s sales,
customer care, operational standards, and employee management.
He
In reviewing the record, the court did not consider the declarations of
Amy Deconincksmith and Nicole Pilgrim in support of Drapala’s opposition
as these two former A.C. Moore employees were not identified in Drapala’s
Rule 26 disclosures nor disclosed in response to defendant’s interrogatory
seeking the names of his potential witnesses. Under Fed. R. Civ. P. 37(c)(1),
“[i]f a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion . . . unless the failure was substantially
justified or is harmless.” Drapala contends that he could not, as an ethical
matter, speak to the witnesses until after they had left A.C. Moore’s
employment. However, Drapala identifies no rule or law that would have
prevented his taking their depositions or asking them for sworn statements.
Indeed, Drapala deposed several current A.C. Moore employees, including
Khalid Mardhy, Drapala’s successor at the Dedham outlet. Drapala’s failure
to disclose the two witnesses was also not harmless – A.C. Moore did not
have an opportunity to examine them on the matters asserted in their belated
declarations.
2
2
reported directly to a District Manager (Ron Last) who oversaw
approximately ten stores. The District Manager (DM) in turn reported to the
Regional Vice President (RVP) who was responsible for 140 stores in three
separate geographical regions. At the regional level, a Loss Prevention (LP)
Manager (Rigoberto Hernandez) and a Human Resources (HR) Manager
(Bradley Godette) also had store oversight duties.
In late 2011, Sbar’s Inc. purchased the financially ailing A.C. Moore
chain. (Sbar’s kept the A.C. Moore brand name). To lift performance, the
new management shifted the focus from cost savings to driving up sales
volume by increasing the variety and availability of merchandise.
See
Hernandez Dep. Tr. at 22-23. To that end, store managers were required to
merchandise warehouse trucks3 in one day’s time (where previously they had
been given two to three days). See Drapala Dep. Tr. at 59. Corporate
management also exercised tighter control over the retail outlets by
implementing regular new audits and requiring store managers to submit
weekly plans. See id. at 57-58. In early 2014, A.C. Moore initiated the use of
a DM site inspection form (visit form) setting out corporate expectations
with respect to various aspects of retail store operation. See id. at 58.
The term refers to the unloading of merchandise trucked to a store
from a central warehouse and moving, organizing, and stocking the
merchandise so as to make it immediately available for sale.
3
3
General managers were graded numerically on their progress in meeting
these expectations during DM visits two or three times a month. At about
the same time, A.C. Moore created two additional RVP positions. See id. at
59. Each of the three RVPs oversaw some 50 stores in their respective region.
See id. Dolph Marinucci became Drapala’s RVP under the reorganization.
Although Drapala had extensive management experience and had
generally performed well at A.C. Moore prior to the Sbar acquisition, he did
not consistently meet the objectives set by new management. In the fall of
2012, Drapala received (documented) verbal counseling from DM Last.
Joseph, you are not meeting company expectations in the
following ways: . . . your Assistant General Managers (AGMS)
have expressed concerns about their lack of training. . . .
[E]mployees were not being held accountable for poor
attendance. . . . The condition of the stockroom has continued to
decline over the last two months.
Def.’s Ex. I (Progressive Disciplinary Record of September 5, 2012) at 1. DM
Last concluded that Drapala was deficient in “[i]ntegrity & [t]rust[, being
r]esults [d]riven[, and p]lanning and [o]rganization.” Id. at 2. Drapala was
instructed to improve in “hold[ing] associates accountable for company
policy and procedures[,] . . . ensur[ing] [he] ha[s] properly trained [his]
management team, . . . [and] develop[ing] an action plan . . . to address [his]
stockroom issues.” Id. Drapala was warned that “[f]ailure to meet the
4
expectations . . . [and] to immediately improve . . . may result in further
disciplinary action up to, and including, termination.” Id.
In January of 2013, Drapala issued a final warning to a store employee
without first obtaining the required approval from Regional HR. In March
of 2013, LP Manager Hernandez visited Drapala’s store to investigate a cash
shortage, and while there, photographed boxes of merchandise and display
items stacked haphazardly in the aisles. Around the same time, DM Last
visited Drapala’s store and gave him a three-page list of items that needed
improvement. For one week in March of 2013, Drapala also failed to submit
a payroll budget as required.
In April of 2013, Last provided Drapala with a written warning. Last
faulted Drapala for “employees [] not being held accountable for leaving cash
pickups unsecured overnight,” and “not giv[ing the employee] any written
documentation of the incident.” Def.’s Ex. N (Progressive Discipline Report
of April 16, 2013) at 1. Last remarked of the fact that A.C. Moore had lost an
appeal of a former assistant manager’s unemployment compensation case
because the court credited evidence that Drapala
was not consistent in holding [his] Associates accountable to the
Company harassment policy. Specifically, [Drapala] partnered
with Human Resources (HR) and [Last] when addressing the
former AGM’s harassment policy violations (leading to his
termination), but in at least two other cases of potential
5
harassment violations, [he] did not partner with HR or [Last]
(resulting in those employees remaining employed).
Last noted Drapala’s explanation that he did not issue a Performance
Discussion Record (PDR) for the unsecured cash pickup incident because no
loss had been incurred by the company. However, “[t]wo weeks after this
incident, money was again left unsecured overnight by other members of the
management team, this time resulting in the loss of over $200.” Id. Last
again cited Drapala for deficiencies in “[i]ntegrity & [t]rust[, being r]esults
[d]riven[, and e]xecuting [v]ision and [p]urpose.”
Id.
Drapala was
instructed to improve by “hold[ing] associates accountable for violations [of]
company policy and procedures[,] . . . partner[ing] with [Last] and Human
Resources when addressing policy violations . . . [and] involv[ing] [his]
Assistant General Managers in the Progressive Discipline Process.” Id. at 2.
Drapala was again warned that “failure to immediately improve . . . may
result in further disciplinary action up to, and including, termination.” Id.
In May of 2013, Drapala received his performance appraisal for the
calendar year 2012. Of a possible total score of 5, he received an overall
rating of 2.85. The rating was above average compared to other A.C. Moore
general managers and Drapala received a performance-based bonus. Last
commended Drapala by stating that he
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[is] a strong merchant and ha[s] shown [he] ha[s] a vast
knowledge of the craft industry. [He] know[s] when items are in
season and ha[s] done a good job promoting items at the right
time. [He] w[as] able to drive key seasonal items in the fourth
quarter which ended up increasing department 18 sales by 21.8%
and department 35 sales by 3.3%. [He] ha[s] also done a good
job with seasonal notes which will help to increase [his] stores
sales next year. [His] transition planning has been good all year
long, [he] always ha[s] [his] store mapped out and [he] use[s]
[his] space very effectively. [He] [is] always focus[ed] on sales
and profit and understand that [he] must continue to drive sale
to increase [his] bottom line profit. [O]nce again [he] delivered
a sales increase of 6.3%.
Def.’s Ex. O (2012-2013 Performance Appraisal) at 2. However, Drapala was
graded as “need[ing] improvement” in “building effective teams” and
“developing direct reports.” Id. at 1. Last wrote that Drapala
need[s] to do [] better with people development and
accountability in 2013. [His store] had several BA [(business
abuse line)] calls related to human resource issue in the store and
when an investigation was done we found that associates were
not being held accountable for attendance issue[s]. There was an
associate that had missed over 20 days of work in the first six
months of the year and she had not been spoken to about her
attendance issues. Not only does this put the company at risk it
created issues at store level.
[Drapala] had issues with [his] two new AGM’s and the[ir] lack
of training they felt they received. . . . The other opportunity . . .
was [his] stockroom standards. The stockroom is a challenge
because of lack of space but was not organized on any consistent
basis. The stockroom needs to become a priority in 2013. We
need to work on bin organization and overall floor condition in
the stockroom.
7
Id. at 2. DM Last recommended that Drapala “focus on improving [his]
knowledge of the human resource aspect of the job. [His store] had a
considerable amount of HR issues and with a better understanding of HR
[Last] fe[lt] [Drapala] would be able to resolve these issues at store level.”
Id.
In November of 2013, Hernandez completed an LP audit of Drapala’s
store and discovered that 21 of the 40 employees had not timely completely
cash register certifications, that company-issued reward cards were being
improperly used for refund transactions, that an employee was initialing all
refunds over $15.00 even when she was not present for the transaction, and
that cash variances were going undocumented. A month later, Drapala’s
store failed a security audit conducted by Hernandez, scoring 70 points out
of 100 (85 was the passing score). Specifically, the audit found that the store
was not processing freight within the required 24 hours, that the store aisles
and stock room presented hazards, that two employees had not completed
cash register certificates, and that Drapala was not printing and reviewing
the required weekly Safe Reconciliation Summary or the Till Adjust
Summary Report.
In January of 2014, Godette performed a payroll audit of Drapala’s
store and found that Drapala had failed to consistently document and
8
reprimand employees for tardiness and for working longer than six-hour
shifts without taking a break, and that the store had numerous time card and
pay discrepancies. Following this audit, Last issued Drapala a final written
warning. In addition to the issues identified by the audits, Last noted that
his recent DM visits had also revealed that the store had poor recovery,4 and
that the stockroom and the classroom were in unkempt condition. Last
faulted Drapala once again for lacking “[i]ntegrity & [t]rust [, being r]esults
[d]riven [, and e]xecuting [v]ision and [p]urpose.” Def.’s Ex. S (Progressive
Disciplinary Record of January 23, 2014) at 2. Last identified seven areas in
which Drapala had to improve immediately or be subject to further
discipline.
The store must comply with all Planner set-dates and Plan-ogram deadlines . . .[;] [w]alk your store daily to identify issues
and opportunities and react immediately to areas of noncompliance[;] . . . [e]nsure established recovery . . . are in place
and followed every day[;] [r]aise . . . expectations of your
leadership team, and staff . . . [;] hold associates accountable for
violations, as per company policy . . . [;] partner with me and with
Human Resources when addressing all policy violations . . . [;
and] get your store standards up to company expectations by
2/28/2014.
Id.
Recovery refers to replacing sold merchandise (from stock) in its
proper location on store shelves.
9
4
Drapala failed a further DM visit in February of 2014, scoring 73 points
and coming up short in the categories of head count, freight processing,
presentation standards, floral sales, floral production plan, and frame sales.
The following month, Drapala scored 80.74 on an LP audit, performing
poorly in security, human resources, electronic journal and back office
review, receiving, stockroom, price integrity, inventory management, and
custom framing. In April, on the new DM visit form, Drapala scored only 70
points.
Last faulted Drapala for missing signs and labels, dirty store
conditions, and short-of-expectation floral and frame sales.
Drapala received a cumulative grade of 2.22 (out of 5) on his calendar
year 2013 performance review. He was scored as “needs improvement” in
four categories: integrity and trust, building effective teams, executing vision
and purpose, and developing direct reports. On a positive note, Last lauded
“[Drapala’s] merchandise knowledge [as] a true asset to the district.” Def.’s
Ex. W (2013 Performance Appraisal) at 2. However, Last also pointed to
Drapala’s shortcomings with respect to the rewards program, daily store
standards on recovery, stockroom, office, bathroom and classroom
cleanliness, and hiring and training of new employees.
In May of 2014, Hernandez conducted a re-audit of Drapala’s store in
the areas that had previously been found deficient. The store scored 81.02,
10
and fell short again in the categories of human resources, electronic journal
and back office review, stockroom, inventory, and custom framing.
Hernandez also identified persistent issues with classroom and stockroom
conditions, as well as numerous payroll discrepancies, and employees
working longer than six-hour shifts without a break. Subsequently, Last
conducted a payroll audit and confirmed several occurrences of over and
underpayments, tardiness, and employees working long shifts without a
break during each week of May.
On June 6, 2014, Marinucci and Last visited Drapala’s store together.
Last’s four-page handwritten notes from this visit reflect that the store lacked
signs and labels in more than a dozen areas, and that the store was missing
merchandise and had poor recovery in several departments. On the same
day, A.C. Moore terminated Drapala, citing his history of various policy
violations, failed audits and DM visits, and poor store conditions. See Def.’s
Ex. BB (Progressive Disciplinary Record of June 6, 2014). “Joe, due to the
continued struggles with the store (as listed above) and the clear lack of
progress since your previous Final Warning on 1/23/14, your employment
with A.C. Moore is terminated effectively immediately.” Id. at 2. This lawsuit
followed.
11
DISCUSSION
Summary judgment is appropriate when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one
which has the “potential to affect the outcome of the suit under applicable
law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.
1993). For a dispute to be “genuine,” the “evidence relevant to the issue,
viewed in the light most flattering to the party opposing the motion, must be
sufficiently open-ended to permit a rational factfinder to resolve the issue in
favor of either side.” Nat’l Amusements v. Town of Dedham, 43 F.3d 731,
736 (1st Cir. 1995) (citation omitted).
Mass. Gen. Laws ch. 151B, § 4 prohibits an employer, “because of the
age of any individual, to refuse to hire or employ or to bar or to discharge
from employment such individual, or to discriminate against such individual
in compensation or in terms, conditions or privileges of employment, unless
based upon a bona fide occupational qualification.”
Like federal age
discrimination claims brought under ADEA, where there is no direct
evidence of discrimination (as is the case here), the analysis of the parallel
state law claim tracks the burden-shifting framework set out by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Wheelock Coll. v. Mass.
12
Comm’n Against Discrimination, 371 Mass 130, 134-135 (1976).
Once
Drapala meets his entry-level burden of establishing a prima facie case of age
discrimination,5 A.C. Moore must come forward with a legitimate,
nondiscriminatory (convincing or not) reason for Drapala’s termination.
Drapala carries the ultimate burden of demonstrating that the reasons given
by A.C. Moore for his termination are pretextual and a mask for intentional
discrimination.
For purposes of summary judgment, A.C. Moore does not dispute that
Drapala has made out a prima facie case.
In meeting its burden of
production at the second phase of the McDonnell Douglas exercise, A.C.
Moore relies on the thickly documented disciplinary record compiled over
three years as support for the argument that it terminated Drapala because
he failed to meet the expectations of the new management. Drapala, for his
5
The elements of a prima facie case under ADEA are
(1) that [Drapala] was at least forty years old when he was fired;
(2) that his job performance met the employer’s legitimate
expectations; (3) that he suffered an adverse employment action
such as a firing; and (4) that the employer filled the position,
thereby showing a continuing need for the services that he had
been rendering.
Melendez v. Autogermana, Inc., 622 F.3d 46, 50 (1st Cir. 2010).
Massachusetts law additionally requires that plaintiff be replaced by
someone at least five years younger. Knight v. Avon Prods., Inc., 438 Mass.
413, 424 (2003).
13
part, contends that A.C. Moore is using the disciplinary record as an excuse
for age discrimination.
Under Massachusetts law, to defeat summary judgment through a
showing of pretext,
a plaintiff [must] demonstrate “that one or more of the
employer’s reasons is false,” which showing, “combined with the
evidence adduced to meet the employee’s burden of proof under
the first stage of McDonnell Douglas,” permits (but does not
require) the jury to “infer that the employer is covering up a
discriminatory intent, motive or state of mind.”
Dyjak v. Baystate Health Sys., Inc., 945 F. Supp. 2d 197, 208 (D. Mass.
2013), citing Lipchitz v. Raytheon Co., 434 Mass. 493, 501 (2001). Drapala
first attacks the contention that under Sbar’s ownership, A.C. Moore
imposed more stringent quality expectations on store managers. Drapala
insists that the company standards remained the same and that he
consistently performed well by these measures. The argument, however, is
inconsistent with Drapala’s own deposition testimony in which he conceded
that after the acquisition by Sbar, A.C. Moore instituted new audits,
inaugurated a new DM visit form, shortened the time allotted to merchandise
warehouse trucks, required submission of weekly store plans, and created
additional supervisory RVP positions. See Drapala Dep. at 57-59.
In face of the disciplinary record, Drapala contends that the
deficiencies with which he was charged were not material to his overall
14
performance. However, he has adduced no competent evidence to challenge
their truth. 6 To take one example: Drapala admits that he did not follow
company procedures in reprimanding store employees for policy violations,
but maintains that he was motivated by fear of losing associates, or that the
violations resulted in no financial loss to the company, or that they were only
technical. See Opp’n at 6-7, 9. Drapala also admits that he did not always
process freight within the allotted 24 hours, and that the classroom,
stockroom, and back office were not always neat and organized, see Def.’s T
(Feb. 20, 2014 e-mail from Drapala to Last enclosing action plan to
remediate failed DM visit categories), but he argues that his shortcomings in
these areas did not impact store operations or overall profitability. See Opp’n
at 3-4. Drapala further admits payroll discrepancies 7 and missing labels and
signs in his store, but dismisses these problems as minor and inevitable in
operating a large retail store. See Opp’n at 10-11.
Drapala cites two Eighth Circuit cases in support of the argument that
his termination was motivated by discrimination because his store
Drapala signed each of his Progressive Disciplinary Reports. He did
not make any documented challenges to any of their findings.
6
7 On the issue of employees working longer than six-hour shifts without
taking a break (which violates state labor law, see Mass. Gen. Laws ch. 149, §
100), Drapala oddly characterizes it as “a very positive point,” because it
“indicated that employees had been working consecutive hours to service[]
the store.” Pl.’s Resp. to Def.’s Statements of Facts (RSOF) ¶ 101.
15
performed well in terms of profitability, which he maintains was the only
germane company performance measure. Because A.C. Moore stipulated
that profitability was not a factor in his termination, it follows, as Drapala
sees it, that the company’s reliance on his other admitted shortcomings is
therefore pretextual. In Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 920
(8th Cir. 2000), the Eighth Circuit held that because “the selling of product
is the primary responsibility of a salesperson and thus that sales volume is
generally the principal indicator of a salespersons performance,” a plaintiff
salesperson’s evidence of sales performance raised a sufficient issue of
material fact as to whether he met the employer’s legitimate expectations for
purposes of making out a prima facie case of age discrimination. See also
Keathley v. Ameritech Corp., 187 F.3d 915, 920 (8th Cir. 1999) (salesperson’s
sales volume sufficient to establish prima facie case), abrogated on other
grounds, Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011). In
contrast, the record here is uncontroverted that as a general manager (not a
salesperson), Drapala had a wide range of responsibilities, including sales,
customer care, store operational standards, and employee management. See
Def.’s Ex. B (General Manager Job Description); RSOF ¶ 7. That he may have
performed well in one area – profitability – does not establish that he
fulfilled all the remaining, reasonably required duties of his position. See
16
Fisher, 225 F.3d at 920 (“[T]hat a nursing home administrator was skilled at
managing finances did not establish that she had met her employer’s
legitimate expectations where the record also revealed that she was deficient
in other skills – leadership and communication – vital to her job as
administrator.”).
The more fundamental point is that the court does not second guess a
company’s nondiscriminatory business decisions.
Even were we to conclude that [plaintiff] is correct [that the
employer should have used different metrics in deciding layoffs],
our task is not to evaluate the soundness of [defendant’s]
decision making, but to ensure it does not mask discriminatory
animus. See Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st
Cir.1991), cert. denied, 504 U.S. 985 [] (1992) (“Courts may not
sit as super personnel departments, assessing the merits – or
even the rationality – of employers’ nondiscriminatory business
decisions”).
Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 56 (2005). If A.C. Moore
had decided to grade its store managers by their skill at fly fishing or their
fluency in ancient Greek, it wouldn’t matter, so long as whatever criteria the
company chose were not proxies for discrimination. Here, there is no
evidence that A.C. Moore’s rather conventional performance expectations of
17
its store general managers were imposed for any other reason than to
improve the prospects of a failing business.8
Because Drapala has failed to show the existence of a material dispute
of fact as to whether A.C. Moore’s stated reasons for his termination were
pretextual, no reasonable jury could conclude that his termination was
attributable to age discrimination.
ORDER
For the foregoing reasons, defendant’s motion for summary judgment
is ALLOWED. The Clerk will enter judgment for defendant and close the
case.
SO ORDERED.
/s/ Richard G. Stearns
___________________________
UNITED STATES DISTRICT JUDGE
As a parting shot, Drapala characterizes two statements that he
alleges Last made to him as displaying an animus against older employees,
namely that “senior managers had targets on their backs,” and that Last
“would not sacrifice his job” to save Drapala’s. Drapala Aff. ¶ 33. The court
does not read these statements as containing anything remotely suggesting
an animus against age. Nor until this pleading did Drapala so interpret them.
Indeed, Drapala earlier testified that no one at A.C. Moore had ever made a
comment about his age over the entire course of his employment there.
Drapala Dep. at 290. Even if in some respect Last’s statements might lend
themselves to a more suspect interpretation, it is well settled that stray
remarks are insufficient to satisfy a plaintiff’s ultimate burden of proving
discrimination. See Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86,
96 (1st Cir. 1996).
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