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Janice Foss v. Coca Cola Enterprises

March 31, 2011


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


In May 2005, Defendant Coca-Cola Enterprises, Inc. ("Coca-Cola") fired Plaintiff Janice Foss, a 44 year old African-American. Ms. Foss then commenced this employment discrimination suit. In the operative Third Amended Complaint, Ms. Foss asserts disparate treatment discrimination based on race, color, and age. She asserts claims under Title VII, Section 1981, and the New York State Human Rights Law.

Pending before the Court is Defendants' summary judgment motion. In response, Ms. Foss has voluntarily discontinued her age discrimination claims, but otherwise opposes summary judgment. (Pl. Opp. Br. at 1.) For the following reasons, Defendants' motion is GRANTED.


In March 1998, Coca-Cola hired Ms. Foss as a Cold Drink Channel Sales Manager, based out of its Hawthorne, New York office. (Def. 56.1 Stmt. ¶ 1.) In April 2002, Coca-Cola promoted her to Area Cold Drink Sales Manager. (Id. at ¶ 2.)

Ms. Foss received mostly positive performance reviews. From 1998 to 2004, she always received a merit raise and "above target" or "on target" performance ratings. (Pl. 56.1 Counter-Stmt. ¶ 11.) In her 2004 review, for instance, she received 23 "meets expectations" ratings, one "above expectations" rating, and six "exceeds expectations" ratings. (Id. at ¶ 12.) Additionally, Ms. Foss steadily obtained "Consistent/yellow" or "Developmental/blue" ratings in Coca Cola's Talent Development Categories color scheme, reflecting Coca Cola's belief that she was either well-suited in her current position, or an employee with a high potential for advancement. (Id. ¶¶ 21-24.) She never received an "Opportunity/red" coding which, under Coca Cola's Orwellian appraisal system, signifies sub-par performance.*fn1 (Id. ¶ 26.)

However, Ms. Foss' otherwise positive performance reviews contained the consistent caveat that she needed to improve her interpersonal skills. In March 2000, her annual performance review stated that "[s]he will be a stronger leader in the future, as she improves in the area of conflict resolution." (Def. 56.1 Stmt. at ¶ 13.) In November 2000, she received a Performance Development Plan ("PDP") that indicated a need for her to "Be more tactful & sensitive when expressing disagreement." (Id. ¶ 16.) In March 2001, her annual performance review set forth that she "demonstrated more flexibility in understanding the opinion of others," but then added that "Janice needs to continue to develop in this area in order to ensure success at the next level." (Id. ¶ 18.) In April 2003, her annual performance review indicated that she "must focus on her communication style when engaged with others whose position is different from hers," and needed to "[b]e more conscious of communicating with others opposed to her position at all levels." (Id. ¶ 21.)

On September 8, 2003, while Ms. Foss was the Area Cold Drink Sales Manager, her superior, Brendan Walshe, sent an e-mail to her and two co-workers at a similar managerial level. (Pl. Ex. H; Def. 56.1 Stmt. ¶¶ 22-24.) The e-mail did not single out Ms. Foss.*fn2 (Pl. Ex. H.) But, among other things, it:

(i) severely criticized the "genuine lack of respect among the team members"; (ii) noted that "Senior managers in this company are expected to be aggressive in attacking behavior that contributes negatively to the team," and are "not expected to contribute to that behavior"; and (iii) stressed that "Respecting one's individualism and right to opinion are essential elements we must improve upon." (Id.) The e-mail further stated that "[a]ny behavior or comments from anyone on our team that negatively contributes to our environment and culture will be dealt with the appropriate discipline up to and including termination." (Id.)

Ms. Foss continued to receive similar performance reviews following this e-mail. On April 1, 2004, for instance, her annual performance review reflected Mr. Walshe's concern that she "be more conscious of her delivery as at times her style can dilute an otherwise valid or poignant comment." (Def. 56.1 Stmt. ¶ 25.)

During October 2004 through December 2004, Defendant Gene Tallman gradually assumed the role of Ms. Foss' direct manager. (Id. at ¶ 9; Pl. 56.1 Resp. ¶ 9.) Because Mr. Tallman replaced Mr. Walshe so late in the year, Mr. Walshe gave Ms. Foss her next annual performance review, in February 2005. (Def. 56.1 Stmt. ¶ 29.) In this review, Mr. Walshe asked Ms. Foss to publicly share peer feedback received during a "360 Degree Review." In addition, although Mr. Walshe praised Ms. Foss' "very professional and personable style when dealing with external customers and community leaders," he commented that Ms. Foss should "mirror that style internally on a more consistent basis," and set "New Goals" for her to "[u]se [a] professional and courteous communication style with colleagues and customers," and "Provide opinions, ideas, and solutions to issues in a constructive manner." (Pl. Ex. I at DEF-005.) That being said, Mr. Walshe awarded Ms. Foss a "Meets" expectations rating on her interpersonal skills. (Id.)

On the whole, Ms. Foss had a "fine" relationship with Mr. Walshe, and, at deposition, could not "recall" Mr. Walshe discriminating against her in any way. (Foss Tr. 133-134.)

Ms. Foss' relationship with Mr. Tallman was more difficult. The two first quarreled over lost accounts with Famous Familiar Pizza ("Famous"). In February 2005, Mr. Tallman met with his reports to discuss losing Famous' business. According to Mr. Tallman, Ms. Foss was not even aware that she had any Famous accounts, even though she had just lost two. (Def. Ex. D at Ex. A.) Mr. Tallman blamed Ms. Foss' ignorance on her decision to use her own Territory Plan, contending that, if she "properly utilize[ed] Territory Planning," she would have known about the two accounts, which collectively purchased 8000 cases. (Id.) And Ms. Foss does not dispute Mr. Tallman's story. At deposition, Ms. Foss testified that she could not recall whether she knew about the Famous accounts before Coca Cola lost them, conceded that she should have known about them, and couldn't "say" whether a standard territory plan would have helped her know about them. (Foss Tr. 146-48.)

Mr. Tallman and Ms. Foss also disagreed about pursuing 99 cent store business. Mr. Tallman wanted the Cold Drink division to seek 99 cent store sales. (Def. 56.1 Stmt. ¶¶ 46, 49.) Ms. Foss responded that, according to Cola Cola Vice President John Brennan, another Cola Coca division already catered to this market. (Pl. 56.1 Resp. ¶¶ 46, 47.) Ultimately, Ms. Foss did not recall pursuing 99 cent store business. (Def. 56.1 Stmt. ¶ 50.)

Mr. Tallman and Ms. Foss sparred over other business objectives as well. During a February 17, 2005 staff meeting, Mr. Tallman discussed implementing a standard Internal Rate of Return goal for the North American Business Unit. (Def. 56.1 Stmt. ¶ 56.) Ms. Foss replied that Mr. Brennan had set a different goal for her area. (Id. ¶ 57.) Ultimately, Ms. Foss declined Mr. Tallman's suggestion to use a common goal with the division, instead of a separate goal for her area. (Foss Tr. 164.)

Mr. Tallman and Ms. Foss also differed about whether Business Development Representatives should have targets for actual placements, or just sales calls. (Foss Tr. 189-92.) Mr. Tallman left Ms. Foss a voice mail requesting actual placement targets. (Def. 56.1 Stmt. ¶ 67). But, despite this voicemail, Ms. Foss then sent Mr. Tallman an attachment that contained sales call targets, but not actual placement targets. (Foss Tr. 193.) When, however, Mr. Tallman reiterated that he wanted placement targets, Ms. Foss complied and sent them to him. (Foss Tr. 193).

Additionally, during an April 2005 staff meeting, Mr. Tallman and Ms. Foss feuded about Cold Drink's Trimester Priorities. At this meeting, Mr. Tallman rejected an opinion expressed by one of Ms. Foss' co-workers. (Def. 56.1 Stmt. ¶ 71.) Ms. Foss then supported the opinion that Mr. Tallman had just rejected. (Id. ¶ 73.) And, when Mr. Tallman rejected that opinion again, Ms. Foss continued to press her case. (Id. ¶ 75; Foss Tr. 109-12.) Ms. Foss indicated, however, that she would execute whatever he decided. (Foss Tr. 112.)

Still another clash occurred over various analyses that Mr. Tallman asked Ms. Foss to perform. On January 25, 2005, Ms. Foss turned in a First Line Operator report that contained incorrect pricing information. (Def. 56.1 Stmt. ¶ 53.) Then, after Mr. Tallman requested a Trimester One priorities report, Ms. Foss turned in incomplete work with missing information. (Id. ¶ 55.)

Ms. Foss did not just have conflicts with Mr. Tallman. She also had difficulties with several co-workers. Tammy Beredetsky, an administrative assistant, complained about Ms. Foss "a couple of times" to Mr. Tallman, claiming that Ms. Foss "at times was belligerent." (Def. Ex. F.) Similarly, in April 2005, Leonard Erlanger, an Area Cold Drink Manager, submitted a written complaint*fn3 to Mr. Tallman about Ms. Foss' "negative and improper actions," documenting how "Ms. Foss had made [him] uncomfortable" and opining that "her behavior was destructive to the team." (Def. Ex. J.)

Additionally, on April 28, 2005, Janice McCarthy, a Cold Drink District Sales Manager, filed a written complaint against Ms. Foss with Mr. Tallman. (Def. Ex. G.) Ms. McCarthy claimed that she "experienced Janice's unprofessional and condescending actions which made it uncomfortable" to work with her. (Id.) More specifically, Ms. McCarthy claimed that, at an April 8, 2005 meeting, Ms. Foss ...

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