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Deluca v. Allied Domecq Quick Service Restaurants

June 13, 2006


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Plaintiff Warren DeLuca brings this action alleging employment discrimination based on his age and retaliation in violation of the Federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (the "ADEA"), and the New York State Human Rights Law, N.Y. Exec. § 296(1) ("NYHRL"). Plaintiff alleges that Allied Domecq Quick Service Restaurants*fn1 ("Dunkin' Donuts" or "Dunkin'") disc-riminated against him by reassigning him, firing him, and later denying him a Dunkin' Donuts franchise because of his age and in retaliation for his complaints about defendant's actions. (See Compl. ¶¶ 15, 19-21, 22, 24-26.) Defendant moves for summary judgment. For the reasons that follow, defendant's motion is granted in part and denied in part.



Construed in a light most favorable to plaintiff, the non-moving party, the facts are as follows:

Dunkin' is an international franchisor of quick service restaurants. (Def.'s Rule 56.1 Statement ("Def.'s 56.1") ¶ 11.)*fn2 Franchisees are licensed to operate under the Dunkin' Donuts system. (Id.) Plaintiff Warren DeLuca was born on March 18, 1957, and was hired in April 1994, by Andrew Wiltshire, a Dunkin' general manager. (Id. ¶¶ 1, 3.) DeLuca was fired on June 5, 2002. (Id. ¶ 7.)

1. DeLuca's Employment from 1994 Until 1998

DeLuca was hired as a business consultant, serving as the first level of supervision over sixty to seventy Dunkin' Donuts franchises. (Id. ¶ 20.) DeLuca worked primarily in the tri-State area of New York, New Jersey, and Connecticut. (Id. ¶ 21.) When DeLuca started his employment with Dunkin', he reported to Wiltshire. (Id. ¶¶ 4, 21.) Following a subsequent reorganization, DeLuca reported to a director of retail operations, who in turn, reported to a senior market executive, the highest position in each market. (Id. ¶ 21.)

Shortly after DeLuca started his employment with Dunkin', he applied to become a franchisee. (Pl.'s 56.1 Counter-Statement ("Pl.'s 56.1") ¶ 22.) Although Wiltshire encouraged DeLuca to become a franchisee, another Dunkin' supervisor, Tony Pellizzi, Sr., denied DeLuca's application because DeLuca was doing a superior job as a business consultant. (Id. ¶ 22.) After DeLuca's application was denied, his sisters applied for, and were permitted to become, Dunkin' franchisees. (Def.'s 56.1 ¶ 22.)

In April 1996, DeLuca was promoted to general manager. (Id. ¶ 23.) Wiltshire encouraged and supported DeLuca's promotion and, indeed, for a brief period following DeLuca's promotion, he and Wiltshire were peers. (Id. ¶¶ 23, 25; Pl.'s 56.1 ¶ 23.) On or about September 1996, DeLuca's job title changed from general manager to director of retail operations. (Def.'s 56.1 ¶ 24.) This change of job title did not represent a promotion or change in salary for DeLuca. (Pl.'s 56.1 ¶ 24.) Also in the Fall of 1996, Wiltshire was promoted to senior market executive. (Def.'s 56.1 ¶ 25.)

At some point in the late 1990s, and continuing throughout DeLuca's employment, Dunkin' rated its franchises based on an A, B, or C scale. (Id. ¶ 26.) A and B-rated franchises qualified for expansion, while Crated franchises were franchises that did not meet Dunkin' standards. (Id.)

As part of Dunkin's reorganization, the position of director of retail operations (DeLuca's position) was made responsible for either A and B-rated franchises, or C-rated franchises. (Id. ¶ 27.) When DeLuca became director of retail operations, he initially oversaw A and B-rated franchises. (Id. ¶ 28.) DeLuca performed well in this position, and received high performance ratings from Wiltshire. (Id.)

2. DeLuca's 1998 Reassignment

At some point after December 9, 1998, DeLuca was reassigned by Wiltshire from overseeing A and B-rated franchises to overseeing C-rated franchises. (Id. ¶ 29.) DeLuca was happy with this decision because overseeing C-rated franchises presented a greater challenge and responsibility for DeLuca, as well as the opportunity to earn larger bonuses. (Pl.'s 56.1 ¶ 29.) DeLuca informed Wiltshire of this, and Wiltshire indicated that he was satisfied with DeLuca's work. Wiltshire also said to DeLuca that, by transferring him to C-rated franchises, there would not be any potential conflict of interest with his sisters' stores, which were all Arated. (Id. ¶¶ 26, 29; Def.'s 56.1 ¶ 31.)

In his new capacity as director of retail operations over C-rated franchises, DeLuca supervised several business consultant specialists, including Lou Beccarelli. (Def.'s 56.1 ¶ 32.) In November 2000, DeLuca completed a performance review of Beccarelli, writing that "Lou is . . . ready to assume a director role within the market and will be endorsed for a director position when one becomes available should his current performance continue. Outstanding leadership abilities." (Id. ¶ 33.) DeLuca's recommendation of Beccarelli was for A/Brated franchises only. (Pl.'s 56.1 ¶ 33.)

3. DeLuca's Fall 2000 Reassignment

In the Fall of 2000, a director position overseeing A/B-rated franchises became available in the New York market overseen by Wiltshire. (Def.'s 56.1 ¶ 34.) DeLuca recommended Beccarelli for this position. (Id.) Based on the adversarial nature of Beccarelli's past dealing with C-rated f ranchises, DeLuca limi ted his recommendation of Beccarelli to A/B-rated franchises. (Pl.'s 56.1 ¶ 34.) Wilthsire did not assign Beccarelli to the open director position overseeing A/B-rated franchises. Rather, he transferred DeLuca to this position and promoted Beccarelli as director over the C-rated franchises. (Id. ¶ 35; Def.'s 56.1 ¶ 35.) This reassignment took effect at some point in August or September 2000. (Def.'s 56.1 ¶ 35.)

DeLuca was concerned about Wiltshire's decision to reassign him to oversee A/B-rated franchises. (Id. ¶¶ 35, 36; Pl.'s 56.1 ¶ 35.) Because DeLuca's sisters were franchisees of A/B-rated stores, there was a greater potential for a conflict of interest because of DeLuca's supervision of business consultants who oversaw his sisters' stores. (Def.'s 56.1 ¶ 35.) DeLuca advised several Dunkin' employees, including Wiltshire, Pellizzi, Beccarelli, and others, that he should remain overseeing Crated franchises because of potential conflicts. (Pl.'s 56.1 ¶ 35.) To address DeLuca's concerns, Wiltshire offered to serve as an intermediary between DeLuca and his sisters' stores to avoid any conflicts of interest. (Id.)

4. Dunkin's Conflict of Interest Policies

Throughout DeLuca's employment with Dunkin', various policies were in place prohibiting employees from being involved in situations creating an actual or perceived conflict of interest. (Def.'s 56.1 ¶ 41.) These policies are included, inter alia, in the (1) March 4, 2002 Code of Conduct; (2) the Global Employee Workplace Policies Manual, dated 2000; (3) the Business Code of Ethics and Standards of Conduct, dated August, 1999; (4) the Interests of Employees and Their Relatives in Franchisee Businesses, dated April 7, 1994; and (4) the Dunkin' Donuts Code of Ethics Poliy. (Id. ¶ 42.) DeLuca asserts that he was not aware of these policies, nor was he ever provided with a written copy of any of these policies. (Pl.'s 56.1 ¶ 41.)

Dunkin' amended the Code of Conduct in 2002 to incorporate a revised Code of Conduct that its parent company had issued. (Def.'s 56.1 ¶ 43.) Additional training attended by DeLuca was conducted in 2002 to highlight the importance of the Code of Conduct. (Id.; Pl.'s 56.1 ¶ 43.)

5. Conflicts of Interest With DeLuca and His Sisters' Stores

Even though Wiltshire told DeLuca he would serve as an intermediary between him and his sisters to avoid conflicts of interest, DeLuca claims that Wiltshire ordered him to interact with his sisters' franchises on Dunkin's behalf. (Pl.'s 56.1 ¶ 38.) Specifically, Wiltshire ordered DeLuca to contact one of his sisters and gauge her interest in purchasing used kitchen equipment from a Dunkin' training facility. (Id.) In another incident, a business consultant supervised by Wiltshire asked DeLuca to get involved in the negotiation of a lease on behalf of his sisters. (Id.) Separately, Wiltshire discussed with DeLuca, his sisters' interest in a group of stores referred to as the "Passavea" network. (Id.) These conflicts were discussed at length in a report prepared by Michael Mershimer (the "Mershimer Report") responding to complaints by several individuals about improprieties in the New York market. (Id.; Def.'s 56.1 ¶ 54.)

6. The Mershimer Meeting and Report

In November 2001, Mershimer, then Dunkin's Director of Loss Prevention, held a meeting in New Jersey because he had received a complaint that several individuals in the New York market were improperly receiving gifts from a vendor. (Def.'s 56.1 ¶¶ 49, 50.) The complaint was directed generally toward the New York market, and both Wiltshire and DeLuca, among others, attended the meeting. (Id. ¶ 51.) At this meeting, Mershimer discussed the complaint and Dunkin's guidelines for accepting gifts. (Id.¶ 52.) Mershimer also informed those in attendance that there would be another meeting taking place to discuss a revised Code of Conduct. (Id.) DeLuca was not directly implicated in any wrongdoing, and was not subjected to any discipline as a result of this meeting. (Id.)

Thereafter, in early 2002, DeLuca attended a meeting hosted by Mershimer to discuss the revised Code of Conduct. (Id. ¶ 45.) Many who attended this meeting questioned Mershimer about practices engaged in by the New York market. (Pl.'s 56.1 ¶ 45.) DeLuca repeatedly questioned Mershimer regarding golf outings because DeLuca knew that Mershimer often accepted golf trips from vendors and franchisees of Dunkin'. (Id.) ...

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