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Cretella v. Liriano

June 17, 2009


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


Plaintiff Frank Cretella ("Plaintiff"), a white male who was over the age of 40 at all relevant times, brings this action against Bergdorf Goodman, Inc. ("Bergdorf"), Nelson Liriano ("Liriano"), Margaret Spaniolo ("Spaniolo") and Maria Loccisano ("Loccisano") (collectively "Defendants").*fn1 He alleges that, after he was hired by Bergdorf as a sales associate in September 2003, Defendants engaged in discriminatory employment practices by reassigning him to a lower-paying position in November 2003 and terminating him in December 2006.*fn2

Plaintiff brings claims of race and age discrimination and retaliation, under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623 et seq., Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("Section 1981"), the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, and the New York City Human Rights Law ("NYCHRL"), N.Y. Charter & Admin. Code § 8-107. Plaintiff also brings a claim for unpaid compensation pursuant to N.Y. Labor Law § 198 et seq.

The Court has jurisdiction of Plaintiff's federal claims pursuant to 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction of Plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

Defendants move for summary judgment dismissing Plaintiff's complaint in its entirety. The Court has considered thoroughly all of the parties' submissions and arguments in connection with the motion. For the following reasons, Defendants' motion is granted.


The following material facts are undisputed unless otherwise stated.*fn3 On September 15, 2003, Plaintiff Frank Cretella began working at Bergdorf as a sales associate in the center pit area on the first floor at the Men's Store. He received an hourly wage plus commission. Defendant Nelson Liriano was his supervisor at that time.

Assignment to Right Pit Area in November 2003

On November 2003 Plaintiff was reassigned to the right pit area on the first floor. While Plaintiff's pay and commission rate remained the same, the right pit area, according to Plaintiff, was "less productive in terms of sales" than the center pit area, and the transfer therefore effectively resulted a reduction of Plaintiff's commission income. (Deposition of Frank Cretella, annexed to Affirmation of Da'Tekena Barango-Tariah, Esq., dated April 6, 2009, as Ex. 1, and annexed to Declaration of Andrew Saulitis, Esq., dated Mar. 9, 2009, as Ex. H (hereinafter "Cretella Dep."), at 133:4-16). Plaintiff was not replaced in the center pit area after he was assigned to the right pit area. However, Plaintiff's reassignment permitted associates already working in the center pit area potentially to earn more commission income due to less competition from other center pit sales associates. (Cretella Dep. at 137:2-139:12.) At the time Plaintiff was reassigned, at least one Hispanic employee, Luis Zambrano ("Zambrano"), and one white employee, Michael Sirico ("Sirico"), were working in the center pit area (id. at 138:4-16), and the right pit area staff included at least one Hispanic employee, Albert Meliana. (Id. at 135:25-136:11.) Plaintiff testified that Liriano assigned Plaintiff to the right pit area in order to allow Zambrano to make more sales and therefore additional commission, but Plaintiff provides no evidence to substantiate his assertion concerning Liriano's motivations. (See, e.g., at 137:17-20 ("I saw that that was one of [Liriano's] goals, he was not subtle about it.".).)

In February 2004, Plaintiff was reassigned to the furnishings area and, at or about that time, Liriano was promoted to be group manager of the second floor and was no longer Plaintiff's direct supervisor.

Annual Reviews and Warnings, and the EEOC Charge

Bergdorf expected its sales associates to maximize sales volume, but it also expected its associates to send handwritten, personalized thank you notes to customers making purchases for at least 50% of all sales. Records of these thank you notes were kept to monitor compliance. (Decl. of John Marazio dated Mar. 9, 2009, ¶ 7.) Sales associates were also expected to solicit, obtain and compile the customer's name, address and telephone number, on 85% of all sales. This latter practice was called "clientele capture." (Id. ¶ 8.)

Plaintiff's first annual review was completed on July 15, 2004. According to the Sales Associate Evaluation form, which was signed by a manager named Aguid Vasconez, Plaintiff exceeded the "Sales Productivity" goal. However, Plaintiff only achieved a clientele capture rate of 52%, and Plaintiff also fell short of the "Thank You Notes" goal of 642, by issuing only 412 thank you notes. Both the "52%" and "412" figures were circled. Plaintiff received a rating of "3," which represented "at standard" on a scale of 1 to 5, for most of the other categories, but received a rating of "2," which represented "development required," under the categories, "Convert returns into sales," "Write and send thank you notes," "Follow clientele capture standards" and "Look for and develop new business opportunities." He received an overall evaluation rating of "3." The form was signed by Plaintiff and dated July 15, 2004. (Barango-Tariah Aff. Ex. 2 at 82-83.)

On June 5, 2005, Plaintiff was issued a "Preliminary Warning" by Defendant Liriano. It indicated, "For the months of February, March, April and May [2005] Mr. Cretella did not follow Clientele standards . . . ." (Barango-Tariah Aff. Ex.2 at 112.) It continued: "Adding false information is a direct violation of company policy and procedures regarding Clientele. He must also address his lack of effort regarding his floor maintenance and visual standards. Frank has also failed to meet the Clientele capture rate goal of 85% and Thank You Card goal of 50% of all transactions for the following months." (Id.) Following this statement was a chart listing each month from August 2004 to May 2005, identifying the respective numerical thank you card goals and the actual number of thank you cards sent, as well as the clientele capture rate for each month. According to the warning, Plaintiff only exceeded the thank you card goal for the month of May 2005, and did not achieve the 85% clientele capture rate for any month. (Id.) Next to the months of February to May 2005, the clientele capture rate was listed as "Inaccurate %." Plaintiff signed his name under the statement, "I acknowledge this Warning and will correct this work related behavior. I am aware of company rules and understand that further disciplinary action will result if deficient performance continues," and dated his signature June 5, 2005. (Id.)

A month later, on July 13, 2005, the evaluation form for Plaintiff's second annual review was completed.*fn4 According to the form, which was drafted and signed by Liriano, Plaintiff again exceeded the "Sales Productivity" goal. (Barango-Tariah Aff. Ex. 2 at 113-114.) However, Plaintiff fell short of the thank you note goal of 1491, sending out only 739, and an "NA" appeared next to Plaintiff's listed clientele capture rate. Liriano was unable to recall at his deposition why an "NA" was inserted there. Plaintiff received more "2's" than in the previous annual review, in almost half of the categories. He again received "2's" in the "Write and send thank you notes" and "Follow clientele capture standards" categories, and his overall evaluation rating on the 2005 form was "2." Each rating was indicated by a circle around the appropriate number, but an incomplete or partially erased circle is found around the number "3" in the overall evaluation rating category, and similar incomplete or partially erased circles are found around the number "3" in some of the other categories in which Plaintiff received a "2" rating. Liriano checked the "Performance deficient - Specify Follow up" category and indicated that he would follow-up with Plaintiff in 30 days. Plaintiff refused to sign this form. (Id.)

Soon thereafter, on August 18, 2005, Liriano issued Plaintiff a second "Preliminary Warning." (It is not clear whether this warning was issued as a result of the July 2005 annual review itself or as a result of a follow-up meeting after the annual review.) It indicated that Plaintiff had failed to achieve the proper clientele capture percentage of 85% and that he had failed to meet his thank you card goal of 50% of all transactions for the 2005 review period (August 2004 - July 2005). In addition, the warning claimed that Plaintiff was not displaying a positive demeanor on the selling floor, failed to maintain his area of responsibility and was not inputting accurate information in connection with clientele capturing. It concluded, "Frank must meet the performance standards as discussed in his annual review. Further disciplinary action may be taken if standards are not met within the next 30 days." Liriano signed this form on September 3, 2005. (Barango-Tariah Aff. Ex. 2 at 115.) Plaintiff refused to sign the form. (Id.)

On or about July 10, 2006, Plaintiff's annual review evaluation form was completed, this time by Plaintiff's direct supervisor, Matthew Banks ("Banks"). Plaintiff continued to exceed the "Sales Productivity" goal, but again fell short of the thank you note goal of 1523, sending out only 646, and his clientele capture rate was 57%. (Barango-Tariah Aff. Ex. 2 at 116-117; Marazio Aff. ¶ 20.) Plaintiff received more "2's" as compared to past annual reviews, in exactly half of the categories, including "Write and send thank you notes" and "Follow clientele capture standards," and he received a "2" overall. Banks further indicated that the evaluation would be followed-up in 30 days. Plaintiff refused to sign this form. (BarangoTaria Aff. Ex. 2 at 116-117.)

Plaintiff was issued a third "Preliminary Warning," dated July 28, 2006, by Banks.

The warning indicated that Plaintiff had failed to meet performance standards for the 2006 review period (August 2005 - July 2006) and largely repeated the issues raised in the previous warning given nearly one year before, including Plaintiff's failure to achieve the thank you note and clientele capture rates, his demeanor, and his failure to maintain his stock assignment and keep the sales floor clean. The form indicated, "Further disciplinary action may be taken if the standards are not met within the next 30 days." Banks signed the form on September 16, 2006. Plaintiff refused to sign the form. (Barango-Tariah Aff. Ex. 2 at 118.) This warning was accompanied by a chart with numbers indicating, inter alia, Plaintiff's failure to meet the thank you note or clientele capture rate goals month by month for the 2006 review period. Plaintiff's handwritten but undated initials appear next to each month's figures. (Id. at 119-20.)

On October 15, 2006, Banks verbally admonished Plaintiff for failing to ensure that four different styles of pajamas were represented on the floor. Banks memorialized this conversation in a "Note to File." (Saulitis Decl. Ex. I at 121.) Plaintiff testified that only one style of pajamas was actually missing on the floor. (Cretella Dep. at 378:11-13.)

On October 19, 2006, Plaintiff was issued a "Final Warning." Signed by both Banks and Defendant Maria Loccisano, a manager in human resources (Marazio Decl. ¶ 42), the warning indicated, "Since being placed on Preliminary Warning on 9/16/06, Frank has failed to achieve the following objectives." The listed objectives included ensuring that the entire sales floor was clean, maintaining the daily stock assignment, and exhibiting a positive demeanor. In addition, the warning stated that Plaintiff was issuing thank you cards photocopied from the same pre-written card, including 78 cards issued in this way in the previous month. Plaintiff refused to sign this warning. (Barango-Tariah Aff. Ex. 2 at 122.)

On or about October 24, 2006, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC").*fn5 Counsel for Plaintiff promptly informed John Marazio ("Marazio"), who had been hired as Vice President of Human Resources at Bergdorf on October 3, 2006 (Marazio Decl. ¶ 1; Barango-Tariah Aff. Ex. 2 at 135), of this fact. (Marazio Decl. Ex. K.)

On November 7, 2006, Banks wrote Loccisano and Liriano an e-mail indicating that Plaintiff had "not shown any substantial improvement in the area[]s we discussed with him, when we put him on Final Warning." (Barango-Tariah Aff. Ex. 2 at 124.) According to the e-mail, Plaintiff's clientele capture rate was at 59%, he only sent out 60 thank you cards in the previous month when he was supposed to write 134, and all 60 thank you cards were photo copies of the same note. The e-mail also included charges that Plaintiff failed to maintain his stock assignments and attached the October 15, 2006, Note to File concerning the pajamas incident. (Id.)

On November 21, 2006, Banks made another Note to File, indicating that Plaintiff failed to give him any thank you cards that month, obtained client information for only six people in two weeks and did not obtain any e-mail addresses. Banks also noted that Plaintiff's sales area was in disarray, in that shirts were on the floor and over the hanging bar. (Saulitis Decl. Ex. I.) Banks e-mailed the Note to File to Loccisano on the same day, asking for her opinion (BarangoTariah Aff. Ex. 2 at 130), and again asked Loccisano via e-mail on November 27 whether ...

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