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Eileen Connolly, et al v. the Tjx Companies

December 30, 2010


The opinion of the court was delivered by: Seybert, District Judge:


Pending before the Court is (1) a motion for summary judgment by The TJX Companies, Inc., Rick Kaiser, and Armando Cabrera ("Defendants", "TJX", "Kaiser", or "Cabrera"), pursuant to Rule 56 of the Federal Rules of Civil Procedure; (2) a cross-motion for summary judgment by Eileen Connolly, Paulette Honick, Darlene Lelle, and Lorraine Serraino ("Plaintiffs", "Connolly", "Honick", "Lelle", or "Serraino"); and, (3) Plaintiffs' motion for sanctions against Defendants' counsel. For the reasons discussed below, Defendants' motion is GRANTED, and Plaintiffs' two motions are DENIED.


From October 1998 to June 23, 2005, Plaintiffs were employed at a T.J. Maxx retail store ("Store") in Kings Park, New York, which is owned and operated by Defendant TJX. Defendants' Local Rule 56.1 Statement ("Def. Stmt.") ¶¶ 1-18. In 2002, Defendant Kaiser, a male T.J. Maxx employee, was promoted to the position of Store Manager and subsequently transferred to the Store where he supervised the work activities of the Plaintiffs, who are all female. Id. ¶¶ 25-26.

For at least one year under Kaiser's management, Plaintiffs found their work environment at the Store to be quite collegial and imbued with a warm, family atmosphere. Defendants' Supplemental Local Rule 56.1 Statement ("Def. Supp. Stmt.") ¶¶ 15-18. During this period, according to Plaintiff Serraino: "everybody got along there. It was a very nice store. Everybody had a good rapport with each other and the customers. [The employees] had [social] functions throughout - [we had] barbeques, parties in the back, celebra[tions] every month [for] whoever's birthday it was.

We had some award dinners where everybody went out together." Serraino Dep., p. 128-129.

Of Kaiser, Plaintiff Serraino testified that she considered him to be a "very nice young gentleman" with whom she "never had a problem." Def. Supp. Stmt. ¶ 19.

As Kaiser grew more comfortable around Plaintiffs, however, he began to occasionally make off-color, ribald jokes. In their deposition testimony, Plaintiffs specifically recount six sexual quips that Kaiser delivered over the course of three years:

1. Relating his interaction with a T.J. Maxx customer in the lingerie department, Kaiser told Plaintiff Lelle that the customer inquired whether the Store carried brassieres "for women with big boobs." He then wondered aloud whether this was not akin to a male customer asking "do you have jocks for big cocks?" Lelle Dep., p. 132. When Lelle's husband called the store later that day, Kaiser repeated his jockstrap simile to him. Lelle was "aghast."

2. Speaking on the Store's intercom system, Kaiser directed Serraino to proceed to his office. On entering, she observed Kaiser standing alongside his desk, wearing a pair of women's thong underwear over his pants. Kaiser then displayed his backside as he nonchalantly asked: "How do you like this? This is a pair of thong underwear." After Serraino left the office, he used the intercom system once more to call "all of the associates" to his office so they might view his attire. Def. Supp. Stmt. ¶ 3.

3. As bundles of men's underwear were unloaded from a delivery truck, Kaiser observed that the male models displayed on the packaging probably were "stuffed." Def. Supp. Stmt. ¶ 5.

4. Dangling a fake flower over his clothed groin area, Kaiser informed Serraino that he had a plan to walk along Fire Island "with just this flower." Def. Supp. Stmt. ¶ 6. Serraino further testified that Kaiser felt comfortable referencing Fire Island "because we all [knew] that he . . . at [that] point he had opened up that he would go to the beach there." Serraino Dep. p. 132. (Emphasis added.)

5. Plaintiffs testified that Kaiser, who kept small African statuettes in his office, would arrange them in "weird" positions and offer "weird" remarks about them. Def. Supp. Stmt. ¶ 9.

6. Kaiser held up a certain piece of faux African artwork carried by the store, which was reminiscent of a totem-poll, and asked Lelle "what does this look like?" Lelle Dep., p. 150.

In is undisputed that Kaiser delivered his sexual comments "in front of" male and female associates alike. Def. Supp. Stmt. ¶ 10. Serraino testified, for example, that he made the "stuffing" comments to both male and female associates. Serraino Dep., p. 147. Of the same incident, Honick testified that the male employees "Rob, Rob Marin, Jon Erik Campbell" were also present. Honick Dep., p. 141. She also flatly stated that she did not believe that Kaiser treated her differently because she was a woman. Id., p. 149. Finally, Lelle testified on the subject of Kaiser's sexual comments directed toward a male employee named Dillon. Lelle Dep., p. 429.

Apart from the mixed genders of Kaiser's intended audience, it is undisputed that the content of his sexual comments concerned both males and females ("Sometimes he'd comment about guys that came into the store. [He would say that] they have a nice butt or they're really good looking." Serraino Dep., p. 135.)

Contrary to Defendants' Supplemental Statement of Undisputed Material Facts, there is a genuine dispute as to when the Plaintiffs first "complained to anyone" about Kaiser's antics. The Supplemental Statement asserts that none of the Plaintiffs complained to anyone prior to January 2005 (Def. Supp. Stmt. ¶ 11), whereas each Plaintiff individually testified that at least two of the Store's assistant managers were apprised of Kaiser's behavior in advance of that date (Connolly Dep. p. 159; Honick Dep. p. 129; Lelle Dep. p. 430; Serraino Dep. p. 155). Plaintiff Serraino further testified that the assistant managers confessed that they were already aware of the issue. Serraino Dep., p. 155.

In any event, it is undisputed that on January 24, 2005, Lelle met with Defendant Cabrera, a District Manager at the time, in order to present him with a formal typed complaint, which included allegations touching on Kaiser's behavior. Def. Stmt. ¶¶ 34-35. Notably, this one-page typed statement chiefly focused on Lelle's "frustration" rooted in her belief that, by neglecting to provide her with proper instructions on condensing clearance coats, Kaiser was responsible for her "double work". Id. ¶ 37. But it also alleged that Kaiser's joking made it "very difficult to work effectively." Id. ¶ 40.

Cabrera hastily informed David Del Vecchio, the Regional Recruitment Manager, of Lelle's complaint and only two days later, Mr. Del Vecchio made a trip to the Store with his supervisor, Fran Cetrone. Id. ¶ 46. Connolly, who was the first to be interviewed by Del Vecchio and Cetrone, officially complained for the first time about Kaiser's behavior, stating however that she knew he was "just joking." Id. ¶ 50. For her part, Honick told the investigating team "how much she liked Rick" and that the Store's employees were "like family." While she noted that Kaiser sometimes joked inappropriately, she allowed that they all did and that the staff would "all laugh and sometimes join in on the joke." Id. ¶ 56.

Next, Del Veccio and Cetrone interviewed Lelle. It is undisputed that Lelle again told the investigators that her primary gripe with Kaiser was the "double work" created through his poor management. Id. ¶ 60. On the subject of Kaiser's inappropriate comments, Lelle commented that she "usually found them funny" but nevertheless wanted them to stop. Id. ¶¶ 61-62.

The last Plaintiff to be interviewed, Serraino, admitted to the team that, although Kaiser's jokes were distasteful and inappropriate, all of the Store's staff "sometimes" got "carried away" with such jokes. Id. ¶ 66.

At length, Del Vecchio and Cetrone completed their initial investigation by speaking with other store associates, virtually all of whom raised no further concerns about Kaiser. Id.

¶ 71. Confronted with the allegations against him, Kaiser confessed to Del Vecchio and Cetrone that he occasionally cracked jokes that could be considered inappropriate. Id. ¶ 73. This acknowledgment prompted Del Vecchio and Cetrone to sternly instruct him that he must immediately cease his questionable sexual comments. In addition, they directed that (1) henceforward all conversations between him and co-workers were to be strictly business related; (2) he must apologize for all inappropriate comments; (3) he must direct all employees to cease inappropriate sexual or discriminatory conversations; (4) he thank the employees for exercising their rights under the company's open door policy. Id. ¶ 76.

Kaiser was then advised that if he transgressed company policy one more time he would be fired. On February 1, 2005, Kaiser called an associate meeting and apologized, as per Cabrera's directive. Id. ¶ 78-79.

Thereafter Cabrera made weekly visits to the Store where he was never informed by employees that Kaiser's untoward conduct had started up again. Id. ¶ 81.

Around the same time of Lelle's first complaint to Cabrera in January 2005, T.J. Maxx's Loss Prevention Department commenced an inquiry into an unusual pattern of "layaway" activity at the Store. Pursuant to written T.J Maxx policy, employees are permitted to set aside certain merchandise and, on a later date, purchase it as layaway. Id. ¶ 82. The policy's rules require that the layaway merchandise be picked up and paid for within thirty days; layaways not paid for within the thirty-day window must be returned to the floor, which of course means that the thirty-day period cannot be continuously renewed. Id. ¶ 84. (Any other policy would enable employees to abuse layaways to reap discounts after repeated use of the mechanism.)

The Loss Prevention Department daily reviewed layaway reports from individual retail stores which did not identify the names of any particular employee; instead, employee numbers were used. Id. ¶ 93. Therefore, Karen Hennessey, the Regional Analyst for Loss Prevention who spotted suspicious layaway activity at the Store in early 2005, was not aware of the specific employees responsible for the breaches of T.J. Maxx policy. Id. ¶ 95. Thus, it is undisputed that the investigation which culminated in Plaintiffs' dismissals was initiated by an analyst who did not know that the Plaintiffs who complained of Kaiser's activity were implicated.

At Hennessey's direction, the Loss Prevention Department tracked the patterns of layaways, markdowns and purchases of all the Store's employees. Id. ¶ 97. Neither Kaiser nor Cabrera was advised of the investigation until after it was complete, as per T.J. Maxx policy. Id. ¶ 99. The investigation revealed that Plaintiffs, along with Carol Hobel and Phyllis Ferraro (who did not complain of Kaiser's conduct), routinely violated the layaway policy by continuously rolling over their ...

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