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FIERRO v. SAKS FIFTH AVE.

July 7, 1998

JOSEPH FIERRO, Plaintiff, against SAKS FIFTH AVENUE and ROBERT PERLEY, Defendants.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM & ORDER

 Brieant, J.

 Presently before the Court is defendants' motion for summary judgment fully heard and submitted on June 25, 1998, in this employment discrimination suit brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. ("Title VII"), and the New York Human Rights Law, N.Y. Executive Law §§ 296 et. seq. ("NYHRL"). This case arises from defendant retailer's discharge of plaintiff following his admitted theft and subsequent cover-up of an employee benefit worth $ 9.85. Accepting the retailer's strong business interest in deterring employee pilfering, discharging plaintiff on the basis of so trivial a sum may seem somewhat rigid. Yet, neither Title VII nor the NYHRL, impose liability for being overly rigid or even harsh. Those statutes simply make employers liable for retaliation or discrimination, neither of which are inferable on the record before us. For these reasons, as amplified below, defendants' motion for summary judgment is granted.

 Background

 Plaintiff Joseph Fierro began working at Saks & Company ("Saks"), as a part-time clothing salesman in November of 1993. By all accounts, plaintiff was a good producer while at Saks, and rose quickly through the ranks. The sole alleged harasser in this case, Mr. Robert Perley, was the manager of the Men's Polo Department in Saks' Manhattan store and as such was plaintiff's supervisor. It is undisputed that Mr. Perley:

 
(1) was, in plaintiff's words, "very eager" to hire plaintiff as a full time employee in July of 1994, and in fact did so. See Fierro Dep. at 31-31; Plaintiff's Affidavit in Opposition to Motion for Summary Judgment, Doc. No. 15, at P3 (hereinafter "Fierro Aff.").
 
(2) created a special "Clothing Specialist" position for plaintiff, in November of 1994, so that plaintiff could receive a pay increase from $ 32,000 to $ 38,000. See Fierro Aff. at P4; Fierro Dep. at 38-39; Def. Exh. I;
 
(3) approved at least one other raise for plaintiff. See Def. Exh. J;
 
(4) consistently gave plaintiff very strong employee reviews. See e.g. Def. Exhs. K and L;

 Plaintiff also received various additional raises while at Saks, presumably with Mr. Perley's approval, so that his salary increased from $ 30,000 per year when he began in full time employ in July of 1994, to $ 46,000 per year as of February 1996. Plaintiff testified that he did not feel discriminated against by Mr. Perley at any time prior to February of 1996. See Fierro Dep. at 43, 59-60.

 On August 31, 1996, plaintiff forged the signatures of Mr. Perley, and Donna Ruffman, and entered Ms. Ruffman's employee identification number into an electronic cash register without authorization, to obtain an improper employee discount on a shirt he had purchased for his wife. See Fierro Dep. at 56-57 and Def. Exh S. Saks' employee handbook provides that:

 
The following list of prohibited conduct represents essential guidelines that are so fundamental to Saks Fifth Avenue's operation that such violations must result in immediate dismissal :
 
1. Theft of Saks Fifth Avenue or another associate's merchandise, property or services;
 
. . .
 
5. Forging a signature;
 
. . .
 
28. Ringing a transaction under another associate's number or on a dummy date line when doing so results in an unauthorized or unwarranted benefit to the associate ringing the transaction.

 See Def. Exh. B. at 37-38 (emphasis added).

 On September 10, 1996 Thomas Dolan and Vane Waller of Saks' Loss Prevention Department interviewed plaintiff about his August 31st transaction, after having noticed transaction irregularities pursuant to a routine cash register survey. See Transcript of Oral Argument. As recounted by Mr. Dolan in a contemporaneous memorandum:

 
When asked, [Mr. Fierro] said that one of his co-workers rang the return but then he rang the purchase. I then asked Fierro who authorized the return and he said that Rob Perley had a standing policy of allowing associates to sign his name as the authorized signature. At this point, I informed Fierro that it would be very easy to verify who actually rang the return, and suggested that if he wished to change his previous answer, this was the time. Fierro then . . . admitted that he had forged [Donna Ruffman's] signature and also written in Rob Perley's name.

 See Def. Exh. S; see also Def. Exh R. (containing two different and conflicting written statements made by Mr. Fierro during the interview). Mr. Dolan's memorandum goes on to state that "Fierro's transaction resulted in a loss to Saks in the amount of $ 9.85." Id.

 Mr. Fierro concedes that he changed his story during the interview, but testified that he "was under a lot of duress at the time." See Fierro Dep. at 116-118. With respect to the theft itself, in a second written statement given by Mr. Fierro at the interview, he admitted as follows:

 
I have received a copy of a handbook and I'm aware of procedures and rules in the handbook. On 8-31-96 @ 9.36 a.m. I rang a return for myself using Donna Ruffman's assoc. # . . . . because of my transaction, I realize I violated Saks policy. I did this transaction in the morning to expedite the return so I could deal with the high volume of business we were expecting that day. I realize it was wrong to do this. I exercised poor judgment and I am truthfully sorry for what I did. I realize that something like this is wrong and it will never happen again.

 See Def. Exh R.

 After being interviewed by the Loss Prevention Department, and after having submitted his written statements, Mr. Fierro returned to the Men's Polo Department to inform Mr. Perley of what had occurred. According to Mr. Perley, although he explained to Mr. Fierro that he had no control over the Loss Prevention Departments' decisions, he nevertheless made various phone calls on Mr. Fierro's behalf. Specifically, Mr. Perley claims to have called Mr. Dolan of the Loss Prevention Department, as well as Elizabeth Solem of the Human Resources Department, to express his opinion that Mr. Fierro was a good employee who had always worked hard. Mr. Perley did this, he claims, in an attempt to persuade Saks not to terminate Mr. Fierro. See Perley Dep. at 70-72. Mr. Fierro denies that Mr. Perley made any phone calls on his behalf. See Fierro Dep. at 121.

 On September 13, 1996, Mr Fierro was informed by Patricia Keating and Elizabeth Solem of the Human Resources Department that he was terminated for violations of Saks' policies. At no time during this exit interview, did Mr. Fierro make any allegations with respect to discrimination of any kind. Instead, essentially he expressed his disbelief that an "exceptional employee" like himself could be fired for such a trivial transgression. See Fierro Dep. at 125. In a written statement submitted at his exit interview, Mr. Fierro stated:

 
I realize I made a mistake . . . I was only trying to free up my time to allow myself to continue my goal of being the best salesman in my department. . . . I had no idea that this was going to be the end result. Security made it seem ...

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