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Helen G. Riordan v. Bj's Wholesale Club

January 14, 2011




Helen G. Riordan ("Plaintiff" of "Riordan") brings this action under the Age Discrimination Employment Act ("ADEA"), 29 U.S.C. 621 et seq., and the New York State Human Rights Law ("NYHRL"), N.Y. EXEC. LAW 290 et seq., alleging that BJ's Wholesale Club, Inc. ("Defendant" or "BJ's") wrongfully terminated her because of her age. Compl. (Dkt. No. 1). Presently before the Court are Defendant's Motion for summary judgment (Dkt. No. 23) and Plaintiff's Cross-Motion for sanctions and/or an inference of discrimination (Dkt. No. 28). For reasons that follow, Defendant's Motion is granted and Plaintiff's Cross-Motion denied.


BJ's Wholesale Club, Inc. is a general merchandise warehouse retailer based in Natick, Massachusetts, with stores across the nation, including one located in Saratoga Springs, New York (the "Saratoga Springs Club"). Def.'s SOMF (Dkt. No. 23-1) ¶¶ 1, 3. In 1997, Riordan applied and was hired for a full-time Merchandise Demonstrator position at BJ's Saratoga Springs Club; she was 78 years old.*fn1 Def.'s SOMF ¶¶ 39, 41-42. Approximately ten years later, on September 4, 2007, BJ's terminated Riordan, who was then 88 years old. Compl. ¶ 19.

In her capacity as a Merchandise Demonstrator, Riordan was responsible for demonstrating and promoting food products to BJ's customers. Def.'s SOMF ¶ 47. She would set up a demo cart with food items, serving cups, and utensils, and offer samples to customers. Pl.'s Dep. (Dkt. no. 31-52) at 137-39. Because she was involved in food preparation and handling, knowledge and adherence to food sanitation and safety rules was an important aspect of her job. Pl.'s Dep. (Dkt. Nos. 31-52, 31-53) at 171-89. Although the extent of Riordan's training remains unclear, she admits to taking yearly food safety quizzes that BJ's administers to Merchandise Demonstrators. See Pl.'s Dep. (Dkt. No. 31-52) at 180-84; Kozak Aff., Ex. 15 (Dkt. No.23-22). She also signed a "Food Handler Sanitary Standards" document that outlines numerous rules governing food sanitation and food server hygiene and conduct. Pl.'s Dep. (Dkt. No. 31-52) at 184; Kozak Aff., Ex. 16 (Dkt. No. 23-23). One of these rules requires a server to notify her supervisor if she is ill; another prohibits a server from working while sick or while exhibiting conditions including vomiting. Id.; Pl.'s Dep. (Dkt. Nos. 31-52, 31-53) at 171-189. Above Riordan's signature, the Food Handler Sanitary Standards document states "I UNDERSTAND THAT FAILURE TO COMPLY WITH THE ABOVE STANDARDS WILL RESULT IN DISCIPLINARY ACTION UP TO AND INCLUDING TERMINATION." Kozak Aff., Ex. 16 (Dkt. No. 23-23).

In 2004 or 2005, a customer allegedly complained to Jim Dobiel, Riordan's Manager at the time, claiming that Riordan had been rude to her. After receiving the customer's complaint, Dobiel allegedly told Riordan that she should "pack up and go home"; when she refused, Dobiel allegedly told Riordan, "You know, you're too old to work. Why don't you quit?" Pl.'s Dep. (Dkt. No. 31-51) at 122-24. Following this exchange, Riordan called Lynn Mallaro, BJ's Area Human Resources Manager, who remembers having a phone conversation with Riordan about the way Dobiel handled a customer complaint situation involving Riordan. Mallaro failed to document the incident and does not recall Riordan telling her that Dobiel making offensive remarks. Pl.'s MOL at 9-10; see also Mallaro Dep. (Dkt. No. 31-41) at 23:9-25:21

Approximately three years later, on April 20, 2007, Riordan's husband passed away. Compl. ¶ 19. Understandably, she became "distressed," and in her grief, could not eat for "a couple of weeks" and only drank water. Pl.'s Dep. (Dkt. No. 31-54) at 251, 267-68. During this period, on more than one occasion, Riordan admits to vomiting at work, including at her cart (though not while she was working), in an aisle, and near the meat department. Pl.'s Dep. (Dkt. No. 31-53) at 247-55. Riordan states that she would vomit into plastic bags, buckets, or garbage cans, sometimes in front of other employees. Pl.'s Dep. (Dkt. Nos. 31-53, 31-54) at 246-71. Riordan did not report any of this to the store's General Manager, Sandy Ryan, or Assistant Manager, Raymond Newberry, stating "I didn't have to report it, everybody knew it, everybody but the manager." Id. at 263. The record leaves unclear exactly how many vomiting episodes there were, but Riordan insists that none occurred after April 2007. Pl.'s Dep. (Dkt. No. 31-54) at 260.

On July 2007, a BJ's meat wrapper alerted Christine Toich and another employee, Bernadette Zawistowski, that Riordan was sick and may have vomited in a bucket at her cart. Toich Dep. (Dkt. No. 23-15) at 80-84. Toich went with Zawistowski to what she believes was Riordan's cart and found the bucket.*fn2 Id. Riordan was not present. Id. Toich spoke with Ryan about the incident, who told her to write up a "corrective." Id. 82-83. Ryan recalls that Zawistowski also informed her of this incident. Ryan Dep. (Dkt. No. 23-12) at 123-24.

Ryan then informed Mallaro about the incident, and the two decided that, while the particular violation was sufficiently "egregious" to warrant termination, Ryan should instead issue Riordan a "Final Written Corrective."*fn3 Ryan Dep. (Dkt. No. 31-40) at 162; Mallaro Dep. (Dkt. No. 31-42) at 51-52. On July 19, 2007, Ryan had Riordan sign a Team Member Corrective Interview Form that states: "On 7/15/07 it was brought to our attention that you Helen have had some incidents at your cart where you have been vomiting in a bucket right at your food cart -- This is a very serious sanitation issue . . . . If you should vomit again at your cart you will be terminated immediately." Kozak Aff., Ex. 18 (Dkt. No. 23-25).

On September 2, 2007, Lisa Billings, a Frontline Supervisor, informed Ryan that two customers reported seeing Riordan vomit at her cart. Ryan Dep. (Dkt. No. 31-40) at 140. Billings did not fill out an incident report, nor did the customers. Id. at 141. Nevertheless, the following day, Ryan confronted Riordan about the accusation, and she claims that Riordan admitted to its truth; Riordan, however, denies ever vomiting at work in September. Id. at 142-43; Pl.'s Dep. (Dkt. No. 31-54) at 260. Ryan then spoke with Mallaro, and the two agreed that Riordan should be terminated. Ryan Dep. (Dkt. No. 31-40) at 155-58; Mallaro Dep. (Dkt. No. 31-42) at 54, 57. On September 4, 2007, Ryan drafted another Team Member Corrective Interview Form. Kozak Aff., Ex. 19 (Dkt. No, 23-26). Marked "Termination of Employment," it states:

On 9-2-07 it was brought to my attention that you vomited at your demo cart. I confronted you concerning the above issue, and you admitted you did vomit while performing your demo. On 7-17-07 you were placed on a final written for this same issue. Helen, it is completely unacceptable and a great sanitation concern. Due to the above, your employment has been terminated. id. Because Ryan was not working the following day, she explained the situation to Newberry, gave him the Team Member Corrective Interview Form, and instructed him to terminate Riordan. Ryan Dep. (Dkt. No. 31-40) at 144-45; Newberry Dep. (Dkt. No. 31-47) at 27-28.

The next day, Newberry and Toich met with Riordan in an office to deliver the termination. Def.'s SOMF. ¶ 100. Newberry read Riordan the above quoted September 4, 2007 Team Member Corrective Interview Form, and asked Riordan to sign it, which she refused to do. Kozak Aff., Ex. 19 (Dkt. No, 23-26); Newberry Dep. (Dkt. No. 31-47) at 101. Newberry and/or Toich told Riordan that she should "[t]ake a six-month vacation" and told her to "feel better." Pl.'s Dep. (Dkt. No. 31-55) at 332-34. Toich had made similar comments on prior occasions, often suggesting that Riordan should "go to Florida," where she knew Riordan's daughter lived. Id. at 329-332. Toich had also previously suggested that Riordan "go down and live with [her] daughter," adding that she might be able to get a transfer if she wants one. Id. at 331.

At some point after being fired, Riordan returned to BJ's and saw a much younger woman performing food demonstrations in the same spot that she did before her termination. Id. at 335-40. BJ's denies that it hired anyone to replace Riordan. Answer (Dkt. No. 7) at ¶ 23.

While Riordan never lodged any formal complaints about discrimination during her tenure at BJ's, a fact she attributes to lack of training and avenues for doing so, she asserts that BJ's fired her because of her age. See generally Compl. Riordan insists that there could be no other reason for her termination since she had not received three disciplinary write-ups, and that various direct and circumstantial evidence show Defendant's discriminatory animus. On November 2, 2007, she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"); on August 19, 2008, the EEOC provided her a Notice of Right to Sue. Id. ¶¶ 9-13. She commenced this action on November 17, 2008. Id.


Before turning to Defendant's Motion for summary judgment, the Court will address Plaintiff's Cross-Motion made pursuant to Federal Rule of Civil Procedure 37. Dkt. No. 28. Plaintiff asks the Court to sanction and/or impose an adverse inference of discrimination against Defendant for the latter's alleged alteration of "key personnel documents" that were in its possession. Id.; Pl.'s Mem. in Opp'n to Summ. J. Mot. and in Supp. Cross-Mot. (Dkt. No. 29) ("Pl.'s MOL") at 11-13. The relevant documents are Riordan's Attendance Card and a Discipline Tracking Log from the 2007 calendar year. See Kim Aff., Exs. B-D (Dkt. Nos. 28-2 -- 28-4). Plaintiff first received these documents on November 29, 1997, presumably in anticipation of this litigation or as part of her application to the EEOC. Kim Aff. (Dkt. No. 28-1) ¶ 3. Plaintiff used the documents, and marked them for identification during the depositions of Ryan, Mallaro, Toich, and Newberry. Id. ¶ 4. On January 4, 2010, pursuant to discovery requests, Plaintiff received documents including the same 2007 Attendance Card and Discipline Tracking Log. Id. ¶¶ 5-9.

A comparison of the two sets of documents reveals that marks that are present on the later versions, are not present in their earlier form. Specifically, the earlier Attendance Card bears only the mark "E", a code designating "Left Early (excused)" on March 16; no mark appears for March 22 or April 8; June 29 and July 1 bear only the mark "P-day", designating a "Personal" day; and September 4 bears only the mark "UA Termed", designating an unexcused absence and termination. Kim Aff. Ex. D at 6. On the later produced version, the following alterations occur: on March 16, "Sick" appears next to the pre-existing "E"; "E-sick" appears on March 22 and April 8; on July 1, "Sick" appears next to the pre-existing "P-day"; and on September 4, an indecipherable squiggle mars the "U" in the "UA" designation. An alteration also appears on the face of Riordan's Discipline Tracking Log. Whereas the earlier version, see Kim Aff., Ex. D at 5, documents a violation on September 2, 2007, the nature of which is stated as, "Vomiting at Demo Station," the later version includes underneath this notation, an additional statement, "violates san. rules," see Kim Aff., Ex. C. Plaintiff seeks sanctions against Defendant for these alterations. Dkt. No. 28.

The Second Circuit defines spoliation as "'the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'" Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). Federal Rule of Civil Procedure 37 empowers a court to impose sanctions when a party spoliates evidence in violation of a court order. See FED. R. CIV. P. 37(b); West, 167 F.3d at 779. Case law establishes courts' inherent power to preserve the integrity of proceedings through the imposition of sanctions for spoliation, even where no explicit discovery order has issued. See West, 167 F.3d at 779; Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002) (citing DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 135-36 (2d Cir. 1998)).

When warranted, "a district court has broad discretion in crafting a proper sanction for spoliation . . . ." West, 167 F.3d at 779. However, any sanction leveled "should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine." Id. (citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998)). District courts should craft sanctions so as to: "(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful ...

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